Dumke v. Department of Health & Human Services

MEMORANDUM ** Chester H. Dumke appeals pro se from the district court’s summary judgment in his action alleging that he was improperly denied Medicare reimbursement for audiological services relating to his cochlear implant. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo the district court’s grant of summary judgment. Andrews v. Shalala, 53 F.3d 1035 , 1039 n. 1 (9th Cir.1995). We will reverse *327 the decision of the Secretary for the Department of Health and Human Services only where it is not supported by substantial evidence or based on legal error. Id. at 1039 . We affirm. The district court properly granted summary judgment as to 42 U.S.C. § 1395x(s)(2) because substantial evidence supports the finding that the audiologieal services were not provided “incident to” a physician’s services. See 42 U.S.C. § 1395x(s)(2); see also Medicare Carrier’s Manual § 2050.1 (interpreting section 1395x(s)(2) to require that services be “rendered under the physician’s direct supervision by employees of the physician”); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844-45 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984) (stating that administrative interpretations are entitled to considerable deference unless plainly inconsistent with the clear meaning of the statute). The district court properly granted summary judgment as to section 1395x(s)(3) because substantial evidence supports the finding that the audiologieal services were therapeutic rather than diagnostic. See 42 U.S.C. § 1395x(s)(3); see also Medicare Carrier’s Manual § 2070.3 (stating that there is no coverage of therapeutic services). Dumke’s remaining contentions are unpersuasive. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.