Lois Zells v. U.S. Secretary of Health, etc., No. 09-56564 (9th Cir. 2011)

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FILED JAN 25 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT LOIS ZELLS, No. 09-56564 Plaintiff - Appellant, D.C. No.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-SJOFMO v. U.S. SECRETARY OF HEALTH AND HUMAN SERVICES, MEMORANDUM * 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

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