                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1691
                                   ___________

John M. Volkert,                      *
                                      *
            Appellant,                *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
Michael O. Leavitt, Secretary of      * District of Minnesota.
                            1
Health and Human Services,            *
                                      * [UNPUBLISHED]
            Appellee.                 *
                                 ___________

                             Submitted: April 7, 2005
                                Filed: April 12, 2005
                                 ___________

Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
                         ___________

PER CURIAM.

      In this action for Medicare reimbursement for home health care expenses for
periods in 1996 and 1998, John Volkert appeals the district court’s2 order granting


      1
      Michael O. Leavitt has been appointed to serve as Secretary of Health and
Human Services, and is substituted as appellee pursuant to Federal Rule of Appellate
Procedure 43(c).
      2
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Janie S.
Mayeron, United States Magistrate Judge for the District of Minnesota.
summary judgment in favor of the Secretary of the United States Department of
Health and Human Services. Following careful review, we agree with the district
court that Volkert cannot seek review in federal court of unexhausted Medicare
claims for reimbursement for his home health care expenses for the period April 18
to November 30, 1996. See Weinberger v. Salfi, 422 U.S. 749, 764 (1975); Anderson
v. Sullivan, 959 F.2d 690, 692-93 (8th Cir. 1992). Jurisdiction to review Volkert’s
related due process argument is also lacking, because it is inextricably intertwined
with, if not identical to, his claim for benefits. See Heckler v. Ringer, 466 U.S. 602,
605, 610-15 (1984). As to Volkert’s unsuccessful claim for Medicare benefits for
November 1998 home health care services, we decline to consider his constitutional
challenge, raised for the first time on appeal, to the definition of “intermittent” found
in 42 U.S.C. § 1395x(m). See Liberty State Bank v. Minn. Life and Health Ins. Guar.
Ass’n, 149 F.3d 832, 834 (8th Cir. 1998).

      Like the district court, we find substantial evidence supports the denial of
Medicare benefits. See 42 U.S.C. § 405(g) (standard of review); 42 U.S.C.
§ 1395ff(b)(1) (incorporating § 405(g)).

      Accordingly, we affirm.
                     ______________________________




                                          -2-
