Rick Machado v. MICHAEL J. ASTRUE, Commissioner of Social Security

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
*** The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICK MACHADO,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
No. 09-15984
D.C. No. 1:07-cv-00955-TAG
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Theresa A. Goldner, Magistrate Judge, Presiding
Argued and submitted June 16, 2010
San Francisco, California
Before: RIPPLE, Senior Circuit Judge, ** RYMER and FISHER, Circuit Judges.
Rick Machado appeals from the district court’s affirmance of the final
decision by the Commissioner of Social Security denying Machado’s application
FILED
AUG 04 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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for supplemental security income benefits. We affirm in part, and reverse and
remand in part.
The ALJ was not obliged to find Machado’s borderline intellectual
functioning per se severe, as Machado contends. See Vasquez v. Astrue, 572 F.3d
586, 596-97 (9th Cir. 2009) (remanding to the ALJ for a determination of whether
claimant’s borderline intellectual functioning was severe). His finding that it was
not severe at Step 2 is supported by substantial evidence. An impairment or
combination of impairments is “not severe” when medical evidence establishes
only a slight abnormality or a combination of slight abnormalities which would
have no more than a minimal effect on an individual’s ability to work. Soc. Sec.
Rul. 85-28; Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The ALJ based
his findings on Dr. Hawkins’s post-hearing evaluation – the only evidence of
psychological impairment in the record. While Dr. Hawkins noted scores in the
low average to borderline deficit range for intellectual functioning and memory, he
indicated no functional limitations resulting from Machado’s impairment, except
for an inability to perform complex reading and math. Machado points to no
evidence suggesting his borderline intellectual functioning is more than a slight
abnormality. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th
Cir. 2009) (“The burden of proof is on the claimant at steps one through four

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. . . .”); see also Soc. Sec. Rul. 85-16 (noting that individuals who have an IQ
between 70 and 79 “should ordinarily be able to carry out [simple oral]
instructions” under limited supervision).
Machado also argues that there is a conflict between the Vocational Expert’s
(VE) testimony and the Dictionary of Occupational Titles. Machado testified that
he had difficulty buttoning his shirt and picking up small items such as pennies and
that he had been fired from his job as a busboy because he kept dropping glasses.
All four of the positions that the VE testified were available to Machado exclude
individuals whose manual dexterity and finger dexterity is in the bottom 10 percent
of the population. The ALJ made no findings on whether Machado’s condition fits
within this parameter. We believe the ALJ needed to take Machado’s testimony
into account and to make findings as to whether all of Machado’s limitations in
manual dexterity and finger dexterity put him into the excluded category. See Soc.
Sec. Rul. 00-4p; Bray, 554 F.3d at 1234; see also Robbins v. Soc. Sec. Admin., 466
F.3d 880, 886 (9th Cir. 2006) (“[A]n ALJ is not free to disregard properly
supported limitations.”).
Accordingly, we affirm on the issue of borderline intellectual functioning,
but reverse and remand for the ALJ to revisit the issues of manual dexterity and
finger dexterity. He should, specifically, determine whether Machado’s limitations

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put him in the bottom 10 percent of the population.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Each party shall bear its own costs on appeal.

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