                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1869



WESTMORELAND COAL COMPANY, INCORPORATED,

                                                         Petitioner,

           versus


THEODORE B. BARKER; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,

                                                        Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(03-0553-BRB; 00-441-BLA)


Argued:   March 17, 2005                    Decided:   June 29, 2005


Before MICHAEL and DUNCAN, Circuit Judges, and Frederick P. STAMP,
Jr., United States District Judge for the Northern District of West
Virginia, sitting by designation.


Petition for review denied by unpublished per curiam opinion.


ARGUED: Douglas Allan Smoot, JACKSON KELLY, P.L.L.C., Charleston,
West Virginia, for Petitioner. Terry Gene Kilgore, WOLFE, WILLIAMS
& RUTHERFORD, Norton, Virginia; Michelle C. Yau, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON BRIEF:
Dorothea J. Clark, JACKSON KELLY, P.L.L.C., Morgantown, West
Virginia, for Petitioner. Joseph E. Wolfe, W. Andrew Delph, Jr.,
WOLFE, WILLIAMS & RUTHERFORD, Norton, Virginia, for Respondent
Barker. Howard M. Radzely, Solicitor of Labor, Allen H. Feldman,
Associate Solicitor for Special Appellate and Supreme Court
Litigation, Nathaniel I. Spiller, Deputy Associate Solicitor, Gary
K. Stearman, Senior Appellate Attorney, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent Director, Office of
Workers’ Compensation Programs.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

            Westmoreland Coal Company (Westmoreland) petitions for

review of an order of the Benefits Review Board (BRB) affirming an

administrative law judge’s award of benefits under the Black Lung

Benefits Act (the Act), 30 U.S.C. § 901 et seq., to Theodore

Barker.    Under the Act a miner is entitled to benefits if he can

establish that he is totally disabled due to pneumoconiosis arising

out of coal mine employment.               30 U.S.C. § 921(a).       A miner

suffering from chronic disease of the lung is entitled to an

irrebuttable presumption of total disability due to pneumoconiosis

if   (A)   x-rays   show   one   or   more   opacities   (greater   than   one

centimeter in diameter) in the miner’s lungs, and the opacities

would be classified as Category A, B, or C in the International

Classification      of     Radiographs       of   Pneumoconioses    by     the

International Labor Organization; (B) a biopsy or autopsy reveals

massive lesions in the lung; or (C) a diagnosis by some other

method yields results described in (A) or (B).            Id. § 921(c)(3).

            Barker, who suffers from chronic lung disease, worked as

a coal miner for thirty-seven years.              This case arises out of

Barker’s third application for black lung benefits filed on July

12, 1999.     The District Director awarded benefits on March 20,

2000, based on a finding that Barker was entitled to the statutory

irrebuttable presumption of total disability due to pneumoconiosis.

After a formal evidentiary hearing, an ALJ issued a decision and


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order, dated October 18, 2000, denying benefits, and the BRB

affirmed on October 23, 2001.             Within one year of the BRB’s

decision, Barker filed a request for modification.            The District

Director issued a proposed decision and order denying modification

on July 19, 2002, and at Barker’s request the file was forwarded to

the Office of Administrative Law Judges for a formal hearing.             A

second ALJ conducted a de novo hearing and awarded benefits.           Upon

reviewing the evidence, the ALJ determined that Barker was entitled

to the statutory irrebuttable presumption of total disability due

to pneumoconiosis.       See id.   Although the ALJ relied primarily on

evidence submitted under prong (A) of § 921(c)(3), that is, x-ray

evidence that showed large opacities, she also evaluated all of the

evidence submitted pursuant to the other two prongs.               The BRB

affirmed the ALJ’s       decision as rational, supported by substantial

evidence, and in accordance with applicable law. After considering

the joint appendix, the briefs, and the arguments of counsel, we

find   no   reversible    error.    We    therefore   deny   Westmoreland’s

petition for review.

                                                                     DENIED




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