United States v. 2005-08-23 | 03-35589 | OKOLOV VBARNHART | precedential | opinion |

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-ALAJO 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.
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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 Administra-
tion’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 Secur-
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ity benefits), asserting inability to work due to muscular dys-
trophy; 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 dis-
abilities 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 omit-
ted). 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; bal-
ance 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 limita-
tions 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 pro-
fessionals, 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.
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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 sub-
stantial 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 bind-
ing 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 bene-
fits.
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[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 substan-
tial 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 accept-
able 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 deter-
minable physical or mental impairment must be established
by medical evidence consisting of signs, symptoms, and labo-
ratory findings, the regulations further provide that under no
circumstances may the existence of an impairment be estab-
lished 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: “symp-
toms . . . 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, physio-
logical, or psychological abnormality that can be shown by
2“SSRs do not have the force of law” but “represent the Commission-
er’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 pur-
pose 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).
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medically acceptable clinical diagnostic techniques, it repre-
sents 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 re-
emphasized 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 deter-
minable 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 exis-
tence of a medically determinable physical or mental
impairment, the individual must be found not dis-
abled 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 Con-
cern,” fell far short of what is required to establish an impair-
ment. 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 subjec-
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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 remark-
able 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 “insuffi-
cient 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 manipu-
lation, as the individual can control the extent of his unsteadi-
ness. 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 volun-
tary movement.” Stedman’s Medical Dictionary 161 (27th ed. 2000).
4In 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.
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[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, E-
43, 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 symp-
toms, any failure of the ALJ to adequately address that testimony does not
affect the outcome of this case.
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