FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARC A. UKOLOV, 

Plaintiff-Appellant, No. 03-35589

v. D.C. No.  CV-02-00705-ALA JO ANNE B. BARNHART,

Commissioner of Social Security, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted

December 9, 2004—Portland, Oregon

Filed August 23, 2005

Before: Thomas G. Nelson, Johnnie B. Rawlinson,

Circuit Judges, and William W Schwarzer, District Judge.*

Opinion by Judge Rawlinson

*The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation. 

11273
COUNSEL

Amy Van Horn, Portland, Oregon, for the plaintiff-appellant.

Victoria B. Chhagan (briefed) and L. Jamala Edwards

(argued), Assistant Regional Counsel, Seattle, Washington,

for the defendant-appellee. 

OPINION

RAWLINSON, Circuit Judge: 

Marc A. Ukolov appeals the district court’s judgment

affirming the Commissioner of Social Security Administration’s (Commissioner) denial of his applications for disability

insurance benefits under Title II of the Social Security Act

and supplemental security income under Title XVI of the

Social Security Act. Because we conclude that Ukolov failed

to establish the existence of a medical impairment, we affirm

the denial of the benefits.

BACKGROUND

Ukolov filed applications for disability insurance benefits

and supplemental security income (collectively Social Secur11276 UKOLOV v. BARNHART
ity benefits), asserting inability to work due to muscular dystrophy; fibromyalgia; kidney stones; fatigue; and numbness

and cramps in his legs and arms. 

The Administrative Law Judge’s (ALJ) written decision

followed the five-step sequential process for determining disabilities established by the Social Security Administration

(SSA). Schneider v. Comm’r of the Soc. Sec. Admin., 223

F.3d 968, 974 (9th Cir. 2000). “If a claimant is found to be

‘disabled’ or ‘not disabled’ at any step in the sequence, there

is no need to consider subsequent steps.” Id. (citation omitted). Step two requires that the claimant have one or more

“severe impairments that significantly limit [his] physical or

mental ability to conduct basic work activities.” Celaya v.

Halter, 332 F.3d 1177, 1180 (9th Cir. 2003). See also 20

C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step two,

the ALJ noted that Ukolov’s alleged impairments were

“[r]estless leg; weak arms; cramps in his hands and feet; balance problems; pain; feelings of worthlessness; suicidal

thoughts; depression; headaches; anxiety; pain in the hips,

back and neck; hearing loss; tinnitus; glaucoma in the right

eye; fibromyalgia; and a poor memory.” Ukolov asserted that,

among other things, these impairments caused severe limitations in his hands and also frequent falls. In evaluating the

severity of these asserted impairments, the ALJ considered

the opinions of various treating and examining medical professionals, including Dr. Gajanan Nilaver, a neurologist. 

Dr. Nilaver had been Ukolov’s physician since March,

2000, and acknowledged that although “[Ukolov] ha[d]

undergone a very exhaustive neurological work-up,” she had

“not been able to establish a definite neurological diagnosis.”

1

1Dr. Nilaver opined that Ukolov’s symptoms were “most suggestive of

demyelinating disease, such as multiple sclerosis.” However, Ukolov was

not diagnosed with multiple sclerosis, and neurological examinations ruled

out demyelinating disease. 

UKOLOV v. BARNHART 11277
The Appeals Council of the SSA denied Ukolov’s request

for review of the ALJ’s decision. Thus, the ALJ’s decision

became the final decision of the Commissioner. See Batson v.

Commissioner, 359 F.3d 1190, 1193 n.1 (9th Cir. 2004).

Ukolov then sought relief in the district court, which affirmed

the ALJ’s denial of benefits. Ukolov now appeals the district

court’s decision on the basis that the ALJ erred by failing to

find him disabled based on his tendency to fall down, as

reflected in his medical records. 

STANDARD OF REVIEW 

“We review de novo the district court’s order affirming the

Commissioner’s denial of benefits.” Moisa v. Barnhart, 367

F.3d 882, 885 (9th Cir. 2004) (citation omitted). “We may set

aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error.” Thomas v.

Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citation and

internal quotation marks omitted). “The claimant carries the

initial burden of proving a disability.” Burch v. Barnhart, 400

F.3d 676, 679 (9th Cir. 2005) (citation omitted). Failure to

prove disability justifies a denial of benefits. See Roberts v.

Shalala, 66 F.3d 179, 182 (9th Cir. 1995). 

DISCUSSION

[1] “Although a treating physician’s opinion is generally

afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the existence of an impairment

or the ultimate determination of disability.” Batson, 359 F.3d

at 1195 (citation omitted). 

[2] Ukolov asserts that the ALJ erred in not addressing Dr.

Nilaver’s statement regarding Ukolov’s gait and imbalance

difficulties. However, Dr. Nilaver’s statement was insufficient

to establish the existence of any medically determinable

impairment that would entitle Ukolov to Social Security benefits. 

11278 UKOLOV v. BARNHART
[3] To qualify for benefits, Ukolov must be disabled. 42

U.S.C. §§ 423(a)(1)(E), 1382(a)(1). The Social Security Act

defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.” 42 U.S.C.

§ 423(d)(1)(A) (emphasis added); see also 42 U.S.C.

§ 1382c(a)(3)(A). A “physical or mental impairment” is one

that “results from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42

U.S.C. §§ 423(d)(3), 1382c(a)(3)(D) (emphasis added). 

[4] In Social Security Ruling (SSR) 96-4p, the SSA

explained what is needed under SSA regulations to show a

medically determinable impairment. SSR 96-4p, 1996 WL

374187 (July 2, 1996).2 The ruling clarified that “[a]lthough

the regulations provide that the existence of a medically determinable physical or mental impairment must be established

by medical evidence consisting of signs, symptoms, and laboratory findings, the regulations further provide that under no

circumstances may the existence of an impairment be established on the basis of symptoms alone.” Id. at *1 (footnote

omitted); see also 20 C.F.R. §§ 404.1508, 416.908. The ruling

noted the distinction between symptoms and signs: “symptoms . . . are an individual’s own perception or description of

the impact of his or her physical or mental impairment(s). . . .

[W]hen any of these manifestations is an anatomical, physiological, or psychological abnormality that can be shown by

2

“SSRs do not have the force of law” but “represent the Commissioner’s interpretation of the agency’s regulations.” Holohan v. Massanari,

246 F.3d 1195, 1202 n.1 (9th Cir. 2001). We therefore “give them some

deference” as long as they are consistent with the Social Security Act and

regulations. Id. (citation omitted). SSR 96-4p is consistent with the purpose of Title II and XVI of the Social Security Act to provide financial

assistance to those who are disabled. See Kildare v. Saenz, 325 F.3d 1078,

1080 (9th Cir. 2003). 

UKOLOV v. BARNHART 11279
medically acceptable clinical diagnostic techniques, it represents a medical ‘sign’ rather than a ‘symptom.’ ” SSR 96-4p,

1996 WL 374187, at *1 n.2; see also 20 C.F.R.

§§ 404.1528(a)-(b), 416.928(a)-(b). The ruling then reemphasized the importance of objective medical evidence to

a determination of disability:

[R]egardless of how many symptoms an individual

alleges, or how genuine the individual’s complaints

may appear to be, the existence of a medically determinable physical or mental impairment cannot be

established in the absence of objective medical

abnormalities; i.e., medical signs and laboratory

findings. . . . In claims in which there are no medical

signs or laboratory findings to substantiate the existence of a medically determinable physical or mental

impairment, the individual must be found not disabled at step 2 of the sequential evaluation process.

SSR 96-4p, 1996 WL 374187, at *1-2. 

[5] Under these standards, Ukolov can only establish an

impairment if the record includes signs — the results of

“medically acceptable clinical diagnostic techniques,” such as

tests — as well as symptoms, i.e., Ukolov’s representations

regarding his impairment. 

[6] Dr. Nilaver’s letter, addressed “To Whom It May Concern,” fell far short of what is required to establish an impairment. Indeed, it did not even purport to opine as to the

existence of an impairment for purposes of obtaining Social

Security benefits. Dr. Nilaver’s restatement of Ukolov’s

symptoms regarding his gait and balance difficulties did not

even speak to the existence of an impairment. Additionally,

Dr. Nilaver’s records contain no reference to results from

“medically acceptable clinical diagnostic techniques” that

would support a finding of impairment. See SSR 96-4p, 1996

WL 374187, at *1 n.2. Dr. Nilaver reported Ukolov’s subjec11280 UKOLOV v. BARNHART
tive complaints, including “gait ataxia,”

3

 balance problems,

dizziness, “limitations with regards to sustained ambulation,”

and “increased tendency to fall.” These portions of the records

do not support a finding of impairment because they are based

solely on Ukolov’s own “perception or description” of his

problems. Id.; 20 C.F.R. §§ 404.1528(a)-(b), 416.928(a)-(b).

Other portions of Dr. Nilaver’s records purport to describe

as “objective findings” the following: a “casual gait remarkable for a wide-based stance,” “difficulty with tandem walk[-

ing],” and “a mild high steppage on the right side.” However,

Dr. Nilaver admitted that no “precise etiologic diagnosis” had

been made, and she specifically noted that there was “insufficient evidence to make a diagnosis of multiple sclerosis.” 

[7] Dr. Kimberly Goslin, another neurologist, made similar

notations regarding Ukolov, including “weakness in the distal

lower extremities” and a positive Romberg test.4 Although

these observations are labeled as “objective,” and although

Romberg results are test results, Dr. Goslin’s observations did

not include a diagnosis or a finding of impairment. 

[8] At first blush, it might appear that the positive Romberg

test sufficiently bolstered Ukolov’s claim of impairment.

However, the Romberg test is susceptible to subject manipulation, as the individual can control the extent of his unsteadiness. This eventuality is borne out by the notations of

Ukolov’s examiners indicating that his unsteadiness was more

pronounced when he was aware that he was being observed.

Additionally, other Romberg tests administered to Ukolov,

including one by Dr. Nilaver, produced negative results. 

3

“Ataxia” is “[a]n inability to coordinate muscle activity during voluntary movement.” Stedman’s Medical Dictionary 161 (27th ed. 2000). 

4

In a Romberg test, the subject stands “with feet approximated . . . [and]

with eyes open and then closed.” Stedman’s Medical Dictionary, at 1640.

“[I]f closing the eyes increases the [subject’s] unsteadiness, . . . the sign

is positive.” Id. 

UKOLOV v. BARNHART 11281
[9] In any event, unlike results from a blood pressure

screening, an electrocardiogram (measuring heart rate), an

electroencephalogram (measuring brain activity), diagnostic

Magnetic Resonance Imaging (MRI), a Computer Axial

Tomography (CAT) Scan (a three-dimensional targeted x-ray),5

or other objective diagnostic techniques, a single positive

Romberg result, unaccompanied by a diagnosis or finding of

impairment, does not and cannot establish the existence of a

disability. Indeed, SSR 96-6p provides that a medical opinion

offered in support of an impairment must include “symptoms

[and a] diagnosis.” See SSR 96-6p, 1996 WL 374180, at *1

(July 2, 1996) (emphasis added). Because none of the medical

opinions included a finding of impairment, a diagnosis, or

objective test results, Ukolov failed to meet his burden of

establishing disability. See Celaya, 332 F.3d at 1180 (“Step

two disqualifies those claimants who do not have one or more

severe impairments.”). Under such a circumstance, the ALJ

committed no legal error in finding lack of impairment at step

two of the process. See Ball v. Massanari, 254 F.3d 817, 823

(9th Cir. 2001) (“[I]f the claimant’s ailment does not pass step

2, . . . it is not disabling.”).6

AFFIRMED.

5Schmidt, J.E., Attorneys’ Dictionary of Medicine (1999 ed.), vol. 2, E43, 48, C-390; vol. 4, M-14; vol. 3, I-26; vol. 2, D-102; vol. 1, A-646; vol.

6, T-152. 

6Because the testimony of the lay witnesses encompassed only symptoms, any failure of the ALJ to adequately address that testimony does not

affect the outcome of this case. 

11282 UKOLOV v. BARNHART