                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-1154



CLINCHFIELD COAL COMPANY,

                                                           Petitioner,

           versus


CLYDE C. LAMBERT; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,

                                                          Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(05-0251-BLA; 03-0464-BLA; 01-0514-BLA)


Argued:   September 21, 2006             Decided:    November 17, 2006


Before WILLIAMS and GREGORY, Circuit Judges, and Thomas E.
JOHNSTON, United States District Judge for the Southern District of
West Virginia, sitting by designation.


Petition for review granted and claim remanded by unpublished per
curiam opinion.


ARGUED: Timothy Ward Gresham, PENN, STUART & ESKRIDGE, Abingdon,
Virginia, for Petitioner.      Sarah Marie Hurley, UNITED STATES
DEPARTMENT OF JUSTICE, Office of the Solicitor, Washington, D.C.;
Gerald Francis Sharp, Lebanon, Virginia, for Respondents.        ON
BRIEF: Anne L. Musgrove, PENN, STUART & ESKRIDGE, Abingdon,
Virginia, for Petitioner. Howard M. Radzely, Solicitor of Labor,
Allen H. Feldman, Associate Solicitor, Christian P. Barber, Counsel
for Appellate Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Office of the Solicitor, Washington, D.C., for Federal Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

     Clinchfield Coal Company (“Clinchfield”) petitions for review

of an administrative order awarding Clyde C. Lambert (“Lambert”)

benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-944

(2000).   Because the administrative law judge (“ALJ”) appeared to

shift the burden of proof from the claimant (Lambert) to the

employer (Clinchfield), we remand the case for further proceedings

consistent with this opinion.



                                        I.

     Lambert, a former coal miner, filed for benefits in 1979.

After lengthy proceedings that included consideration by four

different ALJs and multiple appeals to the Benefits Review Board

(“Board”),     ALJ   Linda   S.    Chapman    awarded   Lambert   benefits    on

November 17, 2004.

     The ALJ held that x-ray readings by eight physicians who found

large Category A opacities in Lambert’s lungs were sufficient to

invoke the irrebuttable presumption under 30 U.S.C. § 921(c)(3)

that Lambert’s disability was “due to” pneumoconiosis.                    See 30

U.S.C.    §    921(c)(3).*        The   ALJ   concluded   that    these    eight


     *
      30 U.S.C. § 921(c)(3) provides in full:

              If a miner is suffering or suffered from a
              chronic dust disease of the lung which (A)
              when diagnosed by chest roentgenogram, yields
              one or more large opacities (greater than one
              centimeter   in   diameter)  and   would   be

                                         3
physicians’ x-ray readings outweighed the medical reports and x-ray

readings    by   physicians   who   attributed     the    abnormalities   in

Lambert’s   lung   to   diseases    such   as   tuberculosis,   cancer,   or

cigarette smoking-induced emphysema, not pneumoconiosis.            The ALJ

made this finding “especially in light of the fact that there is

not any evidence in the file to establish that [Lambert] has had

tuberculosis or another disease process that could be responsible

for [the opacities discovered in his lungs].”            (J.A. 419.)

     The Board affirmed the ALJ’s decision and order on November

30, 2005.   We review the Board’s decision to ensure that the Board

adhered to its statutory standard of review.             Dehue Coal Co. v.

Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995).         The statute requires

the Board to determine whether the ALJ’s findings are “supported by

substantial evidence in the record considered as a whole.”                33



            classified in category A, B, or C in the
            International Classification of Radiographs of
            the Pneumoconiosis by the International Labor
            Organization, (B) when diagnosed by biopsy or
            autopsy, yields massive lesions in the lung,
            or (C) when diagnosis is made by other means,
            would be a condition which could reasonably be
            expected to yield results described in clause
            (A) or (B) if diagnosis had been made in the
            manner prescribed in clause (A) or (B), then
            there shall be an irrebuttable presumption
            that   he   is   totally   disabled   due   to
            pneumoconiosis or that his death was due to
            pneumoconiosis or that at the time of his
            death    he    was   totally    disabled    by
            pneumoconiosis, as the case may be.



                                      4
U.S.C. § 921(b)(3).       We review the Board’s legal conclusions de

novo.   Dehue Coal, 65 F.3d at 1193.



                                     II.

     In Eastern Associated Coal Corp. v. Director, Office of

Workers’ Compensation Programs (Scarbro), 220 F.3d 250 (4th Cir.

2000), we held that “a single piece of relevant evidence” such as

an   x-ray   reading     “can   support    an   ALJ's   finding    that      the

irrebuttable presumption [should be] invoked if that piece of

evidence outweighs conflicting evidence in the record.”                220 F.3d

at 256 (internal quotation marks omitted).          We stated that “the x-

ray evidence can lose force only if other evidence affirmatively

shows that the opacities are not there or are not what they seem to

be, perhaps because of an intervening pathology, some technical

problem with the equipment used, or incompetence of the reader.”

Id. (emphasis added).

     The ALJ relied heavily on Scarbro in deciding Lambert’s claim.

Citing Scarbro, she determined that the x-ray readings of those

physicians   who,   in   her    opinion,   merely   speculated    as    to   the

possible causes for the abnormalities in Lambert’s lung “do not

affirmatively outweigh the findings of Category A opacities by the

eight physicians who noted the presence of such opacities.”               (J.A.

420.)   Further citing Scarbro, the ALJ found that at least two

medical reports in the record do not provide “affirmative evidence


                                      5
that there are no large opacities on [Lambert’s] x-rays, or that

the large opacities are due to a disease process other than

pneumoconiosis.”      (J.A. 425.)

       The ALJ also, however, summarized her understanding of the law

as follows:

       [I]f   Claimant  meets   the   congressionally   defined
       condition, that is, if he establishes that he has a
       condition that manifests itself on x-rays with opacities
       greater than one centimeter, he is entitled to the
       irrebuttable presumption of total disability due to
       pneumoconiosis, unless there is affirmative evidence
       under prong A, B, or C that persuasively establishes
       either that these opacities do not exist, or that they
       are the result of a disease process unrelated to his
       exposure to coal mine dust.

(J.A. 416; emphasis added.)

       This portion of the ALJ’s decision and order misstates Scarbro

and appears to shift the burden of proof to Clinchfield.                   Scarbro

does   not   impose   on    the   employer       the   burden    to   “persuasively

establish” that the opacities physicians may have found do not

exist or are due to a disease other than pneumoconiosis.                   Nor does

Scarbro require that evidence in general “persuasively establish”

(as opposed to “affirmatively show”) that the opacities discovered

in a claimant’s lungs are not what they seem.                   Scarbro holds only

that once the claimant presents legally sufficient evidence (here,

x-ray evidence of large opacities classified as category A, B, or

C in the ILO system, see 30 U.S.C. § 921(c)(3)), he is likely to

win    unless   there      is   contrary       evidence   (typically,     but   not

necessarily, offered by the employer) in the record. The burden of

                                           6
proof remains at all times with the claimant.         See Gulf & W. Indus.

v. Ling, 176 F.3d 226, 233 (4th Cir. 1999) (“The burden of

persuading the factfinder of the validity of the claim remains at

all times with the miner.”); Lester v. Dir., Office of Workers’

Comp. Programs, 993 F.2d 1143, 1146 (4th Cir. 1993) (“The claimant

retains the burden of proving the existence of the disease.”).

       The Board’s decision on appeal does not comment on the ALJ’s

incorrect summary of the law.             In fact, the Board’s decision

suggests that the ALJ did not shift the burden of proof to

Clinchfield.    The Board affirmed the ALJ’s decision and order in

part because the ALJ “[had] not requir[ed] employer’s doctors to

prove the etiology of the x-ray and CT abnormalities seen,” as the

Board previously believed the ALJ to have done in an earlier

decision and order. (J.A. 434-45.)

       Nonetheless, because in misstating Scarbro the ALJ appeared to

shift the burden of proof to Clinchfield, we remand the case.               We

found this the “prudent result” when an ALJ impermissibly shifted

the burden of proof to the employer in Gulf & Western.          176 F.3d at

235.    It remains the appropriate result here, even though the ALJ

may very well find in favor of Lambert again on remand.               Cf. id.

(“Although   the   BRB   may   have   reached   the   same   result   had   it

correctly applied the . . . presumption, we think it prudent to

remand the claim to the BRB for reconsideration.”).




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                                        III.

     In sum, we grant Clinchfield’s petition for review but deny

its request to remand the case to a different ALJ.           We believe that

ALJ Chapman, who is familiar with the record and has thrice made

detailed factual findings in this case, can adequately apply

Scarbro and expeditiously resolve Lambert’s claim.                 We therefore

remand   to   the   Board   and   ALJ    Chapman   for   further    proceedings

consistent with this opinion.

                                                         PETITION FOR REVIEW
                                                           GRANTED AND CLAIM
                                                                    REMANDED




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