First, I am not a certified coder. Just wanted to make that clear.
Are those the only two lines on the claim?
If so, my first thought is wouldn't the 59 modifier go on the 96112 line? I would put the evaluation on line 1 and have the testing on the 2nd line with the 59 modifier.
Normally you would put a 25 modifier on an E&M if that was billed, but the 97165 doesn't fall under the E&M codes, so I would think the 59 should be on the 96112.
But again, I'm not a certified coder so that may not be the issue.