Zells v. U.S. Secretary of Health & Human Services , 414 F. App'x 917 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LOIS ZELLS, No. 09-56564
Plaintiff - Appellant, D.C. No. 2:09-cv-02506-SJO-
FMO
v.
U.S. SECRETARY OF HEALTH AND MEMORANDUM *
HUMAN SERVICES,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
Lois Zells appeals pro se from the district court’s order dismissing her action
challenging the Secretary’s denial of reimbursement for hearing aids under the
Medicare Act, 42 U.S.C. § 1395, et seq. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. We review de novo the district court’s dismissal for failure to state a
claim. Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007). We affirm.
The district court properly dismissed the action because, under the plain
language of the statute, hearing aids are not covered by Medicare. See 42 U.S.C.
§ 1395y(a)(7) (excluding from coverage “hearing aids or examinations therefor”);
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984) (“If the intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously expressed
intent of Congress.”). Contrary to Zells’s contention, there is no support for the
argument that Congress intended to deny coverage only for “routine” hearing aids.
Zells’s remaining contentions are unpersuasive.
AFFIRMED.
2 09-56564