Lois Zells v. U.s. Secretary of Health and Human Services

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOIS ZELLS,
Plaintiff - Appellant,
v.
U.S. SECRETARY OF HEALTH AND
HUMAN SERVICES,
Defendant - Appellee.
No. 09-56564
D.C. No. 2:09-cv-02506-SJO-
FMO
MEMORANDUM*
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.
FILED
JAN 25 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

09-56564 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 of 2 --