                                                                  [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                             ________________________  ELEVENTH CIRCUIT
                                                                          May 23, 2008
                                    No. 06-16700                        THOMAS K. KAHN
                              ________________________                      CLERK


                                Agency No. 06-0238 BRB

DRUMMOND COMPANY, INC.,


                                                                                   Petitioner,

                                            versus

DIRECTOR, OWCP
ROBERT LEE SMITH, SR.,

                                                                               Respondents.

                              ________________________

                        Petition for Review of a Decision of the
                                 Benefits Review Board
                             _________________________

                                      (May 23, 2008)

Before DUBINA and BARKETT, Circuit Judges, and SCHLESINGER,* District
Judge.

___________________
       *Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
PER CURIAM:

      The Petitioner, Drummond Company, Inc. (“Drummond”), seeks review of

the Benefits Review Board’s (“BRB”) decision affirming an Administrative Law

Judge’s (“ALJ”) order awarding black lung benefits to Robert Smith (“Smith”)

payable from June 1997.

      The issue presented on appeal is whether the ALJ erred in determining that

Smith’s black lung benefits became payable in June 1997 instead of June 2001.

      This court reviews the decisions of the BRB de novo, to determine whether

the ALJ’s decision is supported by substantial evidence. U. S. Steel Mining Co.,

LLC v. Director, OWCP, 386 F.3d 977, 984 (11th Cir. 2004). Substantial

evidence is “more than a scintilla.” Id. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion. Id.

      Drummond does not contest the ALJ’s finding that Smith is totally disabled

and entitled to black lung benefits. Rather, Drummond merely contends that the

date those benefits should begin running is June 2001 (the date of Smith’s Request

for Modification) and not June 1997 (the date of Smith’s initial claim).

      After reviewing the record, reading the parties briefs, and having the benefit

of oral argument, we conclude that the 2001 test does not prove the existence of

Smith’s condition in 1997 or 1999. Rather, the 2001 test only proves the

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existence of Smith’s condition in 2001. Thus, the ALJ’s decision granting the

modification and the BRB’s affirmance of that decision were erroneous. As a

result, Smith received four years of benefits he was not entitled to. Accordingly,

we grant the petition for review and remand this case for further proceedings

consistent with this opinion.

      PETITION FOR REVIEW GRANTED.




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