                                         PUBLISH

                        UNITED STATES COURT OF APPEALS
Filed 7/18/96
                                       TENTH CIRCUIT



 MARION W. CHIPMAN,

                Plaintiff-Appellant,

 v.                                                          No. 95-3298

 DONNA E. SHALALA, Secretary of
 Health and Human Services,

                Defendant-Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF KANSAS
                           (D.C. No. 94-CV-2361)


Submitted on the briefs:

Jean C. Owen, Mission, Kansas, for Plaintiff-Appellant.

Jackie N. Williams, Acting United States Attorney, Robert A. Olsen, Assistant United States
Attorney, Kansas City, Kansas (D. Samuel Borin, Acting Chief Counsel, Region VII,
Department of Health and Human Services, Michael R. Fry, Assistant Regional Counsel,
Kansas City, Missouri, of Counsel), for Defendant-Appellee.




Before EBEL, BARRETT, and HENRY, Circuit Judges.


EBEL, Circuit Judge.
       Plaintiff Marion Chipman appeals the district court’s order affirming the decision of

the Secretary of Health and Human Services, partially denying plaintiff’s claims for

Supplementary Medical Insurance Benefits under Part B of the Medicare statute, Title XVIII

of the Social Security Act. Our jurisdiction over this appeal arises from 42 U.S.C. § 405(g)

and 28 U.S.C. § 1291. We review the Secretary’s decision de novo, but under a deferential

standard. Looking at the administrative record as a whole, we may overturn the Secretary’s

decision only “if it is arbitrary, capricious, an abuse of discretion, unsupported by substantial

evidence, or contrary to law”. Hennepin County Medical Ctr. v. Shalala, 81 F.3d 743, 748

(8th Cir. 1996). Applying these standards, and after due consideration of the arguments

presented on appeal, we affirm.1

       In 1990, plaintiff underwent jaw bone augmentation surgery which later permitted the

placement of porcelain veneer crowns. Appellant’s App., Vol. I at 15. The record is clear

that, previous to these procedures, plaintiff was suffering from ulcers and jaw bone atrophy.

Id. at 13. Further, the various doctors plaintiff consulted agreed that the surgery and

porcelain veneer crowns were medically necessary due to those conditions and his inability

to function with dentures. Id. at 100, 101, 106, 107. In 1991, plaintiff submitted Medicare


       1
              After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this appeal.
See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted
without oral argument.

                                              -2-
claims for payment of both the surgery and the crowns. After an initial administrative denial

and a second denial following a hearing before a hearing officer, plaintiff requested a hearing

before an administrative law judge (ALJ). The ALJ concluded that payment for the bone

augmentation surgery was covered by Medicare, but payment for the porcelain veneer crowns

was not. Id. at 12-16. Plaintiff’s request for review with the Appeals Council was denied.

Plaintiff then filed a complaint in federal district court. The district court affirmed the

agency’s decision, and plaintiff now appeals.

       On appeal, plaintiff argues that payment for the porcelain veneer crowns should be

covered by Medicare because 1) the crowns were part of a medically necessary procedure to

treat his underlying medical conditions, 2) Congress did not intend that the dental exclusion

under 42 U.S.C. § 1395y(a)(12) prevent coverage of dental procedures which are required

to treat underlying medical conditions, and 3) the crowns were “incidental to and an integral

part of” covered procedures to treat plaintiff’s ulcers and jaw bone atrophy under provisions

of the Medicare Coverage Issue Manual.




                                             -3-
       Plaintiff argued before both the ALJ and the Appeals Council that treatment of his

underlying medical conditions rendered the dental implants medically necessary and

therefore not excluded by the general dental services exclusion, 42 U.S.C. § 1395y(a)(12).2

Appellant’s App., Vol I at 4, 72-74, 76-78. The ALJ concluded only that the porcelain

veneer crowns were not covered. Id. at 15. The district court stated that the exception in

§ 1395y(a)(12) for underlying medical condition applies only to claims under part A of the

Medicare statute, and noted that plaintiff’s claim was submitted under part B. Appellant’s

App., Vol. II at 127. We agree, and plaintiff does not contend otherwise on appeal. Further,

we agree with the district court that a characterization of the porcelain veneer crowns as

medically necessary, without further authority or basis for an exception from the general




       2
              That section reads:

       (a) Notwithstanding any other provision of this subchapter, no payment may
       be made under part A or part B of this subchapter for any expenses incurred
       for items or services--

       ***

       (12) where such expenses are for services in connection with the care,
       treatment, filling, removal, or replacement of teeth or structures directly
       supporting teeth, except that payment may be made under part A of this
       subchapter in the case of inpatient hospital services in connection with the
       provision of such dental services if the individual, because of his underlying
       medical condition and clinical status or because of the severity of the dental
       procedure, requires hospitalization in connection with the provision of such
       services.

                                            -4-
dental services exclusion, does not support plaintiff’s claim that payment for the crowns

should be covered by Medicare. Id. at 126; see Goodman v. Sullivan, 891 F.2d 449, 451 (2d

Cir. 1989)(Medicare does not cover all medically necessary services).          Plaintiff did not

present his remaining two arguments on appeal to either the ALJ or the Appeals Council.

Accordingly, he has waived those points and we decline to address them. See Pleasant

Valley Hosp., Inc. v. Shalala, 32 F.3d 67, 70 (4th Cir. 1994)(stating, in Medicare

reimbursement dispute, it is “inappropriate” to consider arguments not raised before agency);

Papendick v. Sullivan, 969 F.2d 298, 302 (7th Cir. 1992)(applying rule that issues “must first

be raised administratively” in review of decision to exclude physician from Medicare

program,), cert. denied, 506 U.S. 1050 (1993); Avol v. Secretary of Health & Human Servs.,

883 F.2d 659, 661 (9th Cir. 1989)(declining to address issues not presented to Appeals

Council); see also Osborne v. Babbitt, 61 F.3d 810, 814 (10th Cir. 1995)(contentions not

argued in administrative proceedings waived in federal appeal).

       The judgment of the United States District Court for the District of Kansas is

AFFIRMED.




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