                              ON REHEARING

                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-2012


COASTAL COAL-WEST VIRGINIA, LLC,

                Petitioner,

          v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; RICHARD L. MILLER,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(13-0213 BLA)


Submitted:   September 29, 2015              Decided:   October 5, 2015


Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Petition for rehearing granted; petition for review            granted;
vacated and remanded by unpublished per curiam opinion.


Jeffrey R. Soukup, JACKSON KELLY PLLC, Lexington, Kentucky, for
Petitioner. Otis R. Mann, Jr., Charleston, West Virginia; Sean
Gregory   Bajkowski,   UNITED   STATES   DEPARTMENT   OF    LABOR,
Washington,   D.C.;   Helen   Hart  Cox,   OFFICE   OF    WORKERS’
COMPENSATION PROGRAMS, Washington, D.C., for Respondents.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Coastal Coal-West Virginia, LLC (“Employer”) petitions for

rehearing of our May 12, 2015 decision dismissing as untimely

its petition for review of the Benefits Review Board’s (“the

Board”)      decision      and    order      affirming        the      Administrative       Law

Judge’s (“ALJ”) award of benefits to Richard L. Miller under the

Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (2012).                                 We grant

the    petition      for   rehearing, *         grant    the       petition     for    review,

vacate        the    ALJ’s        award      of       benefits,         and     remand     for

reconsideration of the evidence.

       We     review      de     novo     the       Board’s      and    the    ALJ’s      legal

conclusions and conduct an “independent review of the record to

determine whether the ALJ’s findings of fact were supported by

substantial evidence.”                Island Creek Coal Co. v. Compton, 211

F.3d       203,   207-08       (4th   Cir.      2000)    (internal         quotation      marks

omitted).            “‘Substantial           evidence       is      more      than    a    mere

scintilla’; it is ‘such relevant evidence as a reasonable mind

might       accept   as    adequate        to     support      a    conclusion.’”          Id.

(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).



       *We conclude (contrary to our earlier opinion) that
Employer filed a timely motion for reconsideration of the
Board’s order affirming the ALJ’s award of benefits.     See 20
C.F.R. §§ 802.221(b), 802.407 (2014).   Accordingly, Employer’s
petition for review in this court was timely.   See 33 U.S.C. §
921(c) (2012).



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“As long as substantial evidence supports an ALJ’s findings, we

must sustain the ALJ’s decision, even if we disagree with it.”

Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 322 (4th Cir.

2013) (internal quotation marks and brackets omitted).                 Subject

to the substantial evidence requirement, we defer to the ALJ’s

credibility determinations and “evaluation of the proper weight

to accord conflicting medical opinions.”             Harman Mining Co. v.

Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 310 (4th

Cir. 2012) (internal quotation marks omitted).            On review, this

court is not permitted to reweigh the medical evidence.                Milburn

Colliery Co. v. Hicks, 138 F.3d 524, 536 (4th Cir. 1998).

     To establish entitlement to benefits under the Act, a miner

must prove: “(1) he has pneumoconiosis; (2) the pneumoconiosis

arose out of his coal mine employment; (3) he has a totally

disabling     respiratory       or       pulmonary       condition;        and

(4) pneumoconiosis   is     a   contributing     cause     to    his    total

respiratory   disability.”       Id.     at   529.       An     irrebuttable

presumption of total disability due to pneumoconiosis attaches

     If such miner is suffering . . . from a chronic dust
     disease of the lung which:

     (a) When diagnosed by chest X–ray . . . yields one or
     more large opacities (greater than one centimeter in
     diameter) and would be classified in Category A, B, or
     C in    accordance   with  the   classification  system
     established in Guidelines for the Use of the ILO
     International   Classification    of   Radiographs   of
     Pneumoconiosis as provided in § 718.102(d); or


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       (b) When diagnosed by biopsy                       or     autopsy,        yields
       massive lesions in the lung; or

       (c) When diagnosed by            means other than those specified
       in paragraphs (a) and            (b) of this section, would be a
       condition which could            reasonably be expected to yield
       the results described            in paragraph (a) or (b) of this
       section had diagnosis            been made as therein described .
       . . .

20 C.F.R. § 718.304(a)-(c) (2014); see 30 U.S.C. § 921(c)(3).

Ultimately,         although      the        presumption       is    irrebuttable           once

attached, the miner bears the burden of proving the existence of

complicated pneumoconiosis.                  Lester v. Dir., Office of Workers’

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

       In the petition for review, Employer contends that the ALJ

erred    by   failing       to   consider       the    comments      of    Drs.       Abrahams,

Alexander,      and      Gaziano        on     their     x-ray      interpretations          in

determining that Miller proved by x-ray evidence that he suffers

from      complicated              pneumoconiosis               under           20        C.F.R.

§§ 718.202(a)(1), 718.304(a).                   We agree that the ALJ erred by

failing to consider the physicians’ comments, as those comments

have direct bearing on whether the mass appearing on the x-ray

is in fact the manifestation of a chronic dust disease or is the

result    of    some        other       disease        process.           See        30   U.S.C.

§ 921(c)(3);        20    C.F.R.    §    718.304.          Because        the    ALJ      relied

primarily      on     the    x-ray       interpretations            of    Drs.        Abrahams,

Alexander,     and       Gaziano    in       finding     that     Miller        suffers     from

complicated pneumoconiosis without considering the credibility

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of   the   readings     in     light     of    the    comments,     we    conclude   that

substantial evidence does not support the award of benefits.

      Accordingly,        we    grant      Employer’s         petition     for   review,

vacate      the     ALJ’s      award      of         benefits,      and    remand    for

reconsideration         of         the    x-ray        evidence      of     complicated

pneumoconiosis.         If the ALJ again finds that the x-ray evidence

establishes       the   existence        of    complicated         pneumoconiosis,    he

should     then   weigh      all    of   the       evidence   to    determine    whether

Employer provided affirmative evidence showing that the opacity

does not exist or was caused by another disease process.                              See

Westmoreland Coal Co. v. Cox, 602 F.3d 276, 283-84 (4th Cir.

2010); E. Assoc. Coal Corp. v. Dir., Office of Workers’ Comp.

Programs, 220 F.3d 250, 256 (4th Cir. 2000).

      We dispense with oral argument because the facts and legal

contentions       are   adequately       presented       in   the    materials    before

this court and argument would not aid the decisional process.



                                                   PETITION FOR REHEARING GRANTED;
                                                      PETITION FOR REVIEW GRANTED;
                                                              VACATED AND REMANDED




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