                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-1566


MARINE   REPAIR   SERVICES,   INCORPORATED;    SIGNAL    MUTUAL
INDEMNITY ASSOCIATION, LIMITED,

                Petitioners,

           v.

CHRISTOPHER   E.   FIFER;  DIRECTOR,   OFFICE   OF   WORKERS'
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(11-0624)


Argued:   March 20, 2013                      Decided:   May 2, 2013


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished opinion. Judge Duncan wrote
the opinion, in which Judge Wilkinson and Judge Shedd joined.


Lawrence Philip Postol, SEYFARTH SHAW, LLP, Washington, D.C.,
for Petitioners.     Michael J. Perticone, HARDWICK & HARRIS,
Baltimore, Maryland, for Respondents.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

      Marine        Repair     Services,           Inc.       (“Marine”)         petitions       for

review of the Decision and Order of the Benefits Review Board

(“BRB”    or    the       “Board”)       awarding          permanent     partial       disability

benefits to Marine’s former employee, Christopher Fifer, under

the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).

Applying       the        burden-shifting              scheme          that    governs         LHWCA

disability        claims,       the         administrative              law    judge       (“ALJ”)

reviewing Fifer’s claim concluded that Marine failed to meet its

burden of presenting suitable alternative employment for Fifer.

The BRB affirmed.             Because the ALJ made findings unsupported by

the   record        and    demanded        more       of    Marine      than     our     precedent

requires,      we     grant    Marine’s          petition         for    review,       vacate    the

Decision       and     Order        of     the     BRB,       and       remand     for     further

proceedings consistent with this opinion.



                                                  I.

                                                  A.

      Prior to the events underlying this petition, Fifer earned

$1,219     weekly         working        for    Marine       as    a    repairman        of    large

shipping       containers,          a      physically         demanding          job     requiring

climbing, bending, and heavy lifting of over fifty pounds.                                        On

October     26,      2007,     Fifer           suffered       shoulder,        arm,      and    back

injuries in an on-the-job car accident.                                 After the accident,

                                                  2
Marine began paying Fifer temporary total disability benefits

while Fifer sought treatment.

      Dr. Michael Franchetti became Fifer’s primary orthopedist,

to whom Fifer complained of back pain which radiated down his

legs, as well as back spasms.                  During his two-year course of

treatment, Dr. Franchetti encouraged Fifer to perform physical

therapy,      prescribed     muscle     relaxers         and     painkillers,     and

reviewed scans of Fifer’s spine.                  He also referred Fifer to

another     physician      for     epidural       steroid       injections.       Dr.

Franchetti ultimately diagnosed Fifer with chronic lumbosacral

strain, sciatica, and disc protrusion and herniation.

      Fifer    underwent     his   first       functional      capacity   evaluation

(“FCE”) in June 2008.             In addition to finding that Fifer did

“not meet the physical demands of his pre-injury occupation,”

the evaluator concluded that Fifer should limit himself to jobs

within     “medium”   work       parameters,      and    that    he   should    limit

lifting to twenty-five pounds on an occasional basis.                     J.A. 241.

In an attempt to prepare himself to return to Marine, Fifer

completed a round of work-hardening from July to September 2008. 1

The   work-hardening    evaluator       released        Fifer    on   September   12,


      1
       Work-hardening is a rehabilitation process through which
injured employees perform tasks that simulate the physical
demands of their jobs in an effort to condition them for return
to employment.



                                           3
2008,    ascribing        him   “full     time      tolerance[]          with    the    lower

parameters     of     heavy     work,     with      limitations          in     bending     and

material     handling.”           Id.    at     263      (the    “2008        work-hardening

release”).     The evaluator instructed Fifer to see Dr. Franchetti

on September 15, 2008 for “a full release back to work.”                            Id.

     Fifer’s September 15 visit to Dr. Franchetti resulted in

updated work restrictions (the “September 2008 restrictions”).

Dr. Franchetti indicated that Fifer could return “to restricted

work status,” so long as he performed “[n]o repetitive bending

or twisting with [his] back, no lifting more than 55 lbs., no

carrying more than 40 lbs., no overhead lifting more than 30

lbs., no lifting more than 30 lbs. frequently, and no sitting

more than 45 minutes without changing positions.”                                 J.A. 211.

Marine   would      not    employ       Fifer     while     he    was    subject       to   the

September 2008 restrictions.                  As a result, Fifer began working

at his family’s seafood restaurant, where he earned $400 weekly

performing     odd        jobs,     errands,          and       assisting        with       food

preparation.          Prior to his work as a longshoreman, Fifer had

managed his family’s restaurant for two years.

     Both    parties        agree   that        Fifer       reached      maximum    medical

improvement      in    February     2009.           On      August      20,    2009,    Fifer

underwent a second FCE.             That evaluation showed reduced lifting

ability, as compared to the 2008 FCE, but also indicated that

Fifer could sit and stand “frequent[ly]” and walk “const[antly]”

                                              4
at a slow pace, improvements from the 2008 FCE.                             J.A. 371.        The

evaluator    concluded        that    work        in   the   family      restaurant          was

“consistent       with   [Fifer’s]        demonstrated        activity        tolerances,”

that Fifer could not return to Marine as a container repairman,

and that he should “[m]aintain work activity within the light

work parameters.”            Id. at 373.           According to the FCE, “light

work”    includes     jobs    that     involve         occasionally         lifting     up    to

twenty pounds and require “walking or standing to a significant

degree.”    Id. at 371.

     During an October 2009 deposition in connection with this

case, Dr. Franchetti clarified that based on the results of the

August     2009     FCE,      he      would        revise       his     September        2008

restrictions.       Specifically, based on the August 2009 FCE, Dr.

Franchetti would reduce Fifer’s “lifting and carrying weight to

25 pounds,” reduce overhead lifting to twenty pounds, and “would

recommend     no     lifting       more      than       about      10    to     15    pounds

frequently.”          J.A.    390     (“the        October      2009     restrictions”).

Fifer’s     sitting      restriction        remained         the      same:    no     sitting

without changing position for forty-five or more minutes.                                    Dr.

Franchetti    confirmed        that    he     did      not   see      any     problem    with

Fifer’s work in the family restaurant.




                                              5
                                            B.

                                            1.

      After      Marine    discontinued          temporary      payments     in   January

2009, Fifer filed this claim for permanent disability benefits

under the LHWCA, 33 U.S.C. § 901 et seq.                         The ALJ conducted a

hearing on October 29, 2009.

      At the hearing, Fifer and Dr. Franchetti testified that

physical limitations prevented Fifer from returning to work as a

repairman at Marine. 2            Dr. Franchetti testified that Fifer “has

sustained a permanent impairment to his person as a whole, as a

result of his lumbar spinal injury,” resulting in a “31 percent

whole person impairment.”               J.A. 389.

      Marine      presented       evidence       of    alternative       employment   for

Fifer     in    the    relevant    geographic          area.     Marine’s    vocational

rehabilitation specialist, Brian Sappington, testified to three

labor market studies he had prepared to demonstrate alternative

employment.           The first two were conducted in December 2008 and

relied     on   Fifer’s     2008    work-hardening            release,    which   allowed

“[h]eavy duty [work] with limitations.”                         J.A. 276.     The first

study listed positions as a welder, forklift driver, courier,

and     security        guard;     the    second        included     five    restaurant

management       positions       with    “light       duty”    physical   requirements.

      2
          Dr. Franchetti testified by deposition.



                                             6
Sappington’s         third   and     final       study     took    Dr.     Franchetti’s

September 2008 restrictions into account.                       J.A. 359 (noting that

Fifer’s restrictions were “[u]nlimited standing with restricted

lifting per Dr. Franchetti”).               That study provided a description

of the restaurant manager and assistant manager role from the

Dictionary      of     Occupational       Titles      (“DOT”)       and     listed      six

restaurant management positions for which Sappington testified

Fifer would be vocationally qualified.

     Sappington supplemented the second and third study with his

testimony at the hearing before the ALJ.                          Specifically, upon

receiving    Dr.       Franchetti’s       October        2009     work    restrictions,

Sappington had contacted employers from the second and third

studies   and    performed         site   visits     to    determine       whether      the

restaurant      management     positions          would     comport       with   Fifer’s

revised   lifting       restrictions.            Sappington       testified      that    he

identified two restaurants where a person with a twenty-five

pound lifting restriction “would be a candidate” or where “the

restaurant   would       provide     reasonable          accommodation      to   someone

with Mr. Fifer’s background and restrictions,” J.A. 156, and two

more restaurant positions where employees told Sappington they

rarely    lifted       anything      over        twenty-five       pounds     and    felt

accommodations were possible, id. at 157-58, even though the job

descriptions for those restaurant posts required an ability to

lift more than twenty-five pounds.                  Sappington identified three

                                             7
additional restaurant positions which did not include a minimum

lifting requirement, although he was unable to verify actual

lifting     requirements        at     those         restaurants.                 Therefore,

Sappington concluded that of the seven restaurants he visited,

four of them would “definite[ly]” accommodate Fifer’s physical

limitations.      Id. at 164.        The annual salary for these positions

ranged from $28,000 to $40,000.                 Sappington also testified that

the security guard positions listed in the first labor market

study,    which    required     “frequent         standing        and    walking,”       fit

within Dr. Franchetti’s October 2009 restrictions.                       J.A. 282.

                                           2.

      In an opinion issued on March 28, 2010, the ALJ concluded

that Fifer met his burden of establishing a prima facie case of

total    disability     since     he      could      not    return      to    his    former

position at Marine.        The ALJ then assessed whether Marine had

rebutted    Fifer’s     showing      of    disability        by    demonstrating         the

availability      of   suitable      alternative           employment        by    comparing

Sappington’s labor market studies with Fifer’s vocational and

physical abilities.       She found that none of Sappington’s studies

provided    adequate     levels      of    detail      regarding        the       positions’

requirements.      As such, the ALJ determined that Fifer’s job in

the     family    restaurant,        where      he     earns      $20,800         annually,

represented his wage earning capacity.                       She awarded permanent

partial disability benefits accordingly.

                                            8
     The ALJ credited Fifer’s testimony regarding his physical

limitations.          Fifer    testified      that     he   chose    to    work      at   his

family’s restaurant because there, “if I need to take a break

and sit down I can sit down and . . . I’m not going to get

fired.”        J.A.    96.         While   Fifer     testified      that     he   can     “do

everything [at the restaurant] that needs to be done,” he has,

on at least one occasion, taken a thirty minute break to lay

down when he felt a muscle spasm developing in his back.                                  J.A.

96-97.     The ALJ also credited the testimony of Fifer’s brother,

Tracy, who manages the restaurant; Tracy Fifer testified that

his brother “has up days and down days” and sometimes “needs to

sit down right away” when he arrives to work.                          J.A. 129.          The

ALJ also credited the deposition testimony of Dr. Franchetti,

who confirmed that Fifer’s restaurant work comported with the

October    2009      restrictions,         which    limited   Fifer       to   lifting      a

maximum of twenty-five pounds.

     In    rejecting         the    labor     market    studies,       the     ALJ    found

Marine’s first study inconsistent with Fifer’s restrictions, as

some of the jobs--forklift operator and welder--“require[d] the

ability to perform medium or heavy work.”                      Id. at 32.         The ALJ

rejected    the      security       officer    positions      listed      in   the    first

study after finding that Fifer’s pain medication regimen would

cause    him    to    fail    any     required      drug    screenings,        precluding

employment as a security guard.                   The ALJ rejected the five light

                                              9
duty restaurant management positions in Marine’s second study

because “Mr. Sappington did not provide a description of the

positions, other than by their title,” nor did he indicate that

he    “actually    spoke   to     anyone   about      the    job       duties     and

availability of these positions.”            Id.      Finally, although the

ALJ recognized that the third study, along with Sappington’s

testimony,   identified    four     positions      where    “lifting       over    25

pounds was not regularly required of the manager,” she faulted

that study for failing to “describe[] the specific duties of

these positions, in particular, whether they require standing

for long periods of time, and provide for rest breaks.”                     Id. at

33.    The ALJ concluded that “Mr. Fifer’s credible complaints of

pain, his inability to stand for long periods of time, his need

for frequent rest breaks, and his regimen of medication” made

the   restaurant    jobs   inapplicable      “although       [the       jobs]     may

accommodate the lifting restrictions.”          Id.

      The Board affirmed the ALJ’s decision.                It concluded that

Sappington “did not provide all of the job duties or assess the

jobs’ suitability in terms of all of claimant’s restrictions,”

and “did not refer to any standard job descriptions.”                       Id. at

59.     Because    Sappington’s    reports   “lack[ed]       .     .   .   specific

information regarding all the physical duties required of the

positions,” the ALJ could not determine whether Fifer’s need for



                                      10
“frequent breaks” and “limit[ations] in the amount of sitting

and standing he can do” would be accommodated.                  Id.

        The Board issued its final opinion on April 5, 2012.                    This

appeal followed.


                                          II.

        On     appeal,    Marine   contends     that    it   met   its    burden   of

showing suitable alternative employment for Fifer, and that the

ALJ’s        conclusions    are    therefore     unsupported       by    substantial

evidence. 3

        In determining whether Marine met its burden of showing

suitable alternative employment, we review Board decisions for

errors of law and “to ascertain whether the Board adhered to its

statutorily mandated standard for reviewing the ALJ’s factual

findings.”         Newport News Shipbldg. & Dry Dock Co. v. Riley, 262

F.3d        227,   231   (4th   Cir.   2001).     An    ALJ’s   factual     findings

“‘shall be conclusive if supported by substantial evidence in

the record considered as a whole.’”                    Newport News Shipbldg. &

Dry Dock Co. v. Stallings, 250 F.3d 868, 871 (4th Cir. 2001)

(quoting 33 U.S.C. § 921(b)(3)).


        3
       Marine also raises several challenges related to Fifer’s
attorney’s fee award.      Attorney’s fees are available for
successful prosecution of a LHWCA claim.     33 U.S.C. § 928.
Because we vacate the Board’s Order and remand, we need not
address the issue of attorney’s fees.



                                          11
       Our    assessment    of    whether       the    Board   complied     with    that

standard comprises “an independent review of the administrative

record”;      “[l]ike   the       Board,    [we]       will    uphold     the   factual

findings of the ALJ so long as they are supported by substantial

evidence.”      Norfolk Shipbldg. & Drydock Corp. v. Faulk, 228 F.3d

378, 380 (4th Cir. 2000).            We consider “substantial evidence” to

require “more than a scintilla but less than a preponderance”;

it is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”                      Id. at 380-81 (internal

quotation      and   citation     omitted).           We   review   the   ALJ’s    legal

determinations de novo.            Dir., Office of Workers’ Comp. Programs

v. Newport News Shipbldg. & Dry Dock Co., 138 F.3d 134, 141 (4th

Cir. 1998).

       The Act provides compensation to longshore workers who have

experienced on-the-job injuries “for the economic harm suffered

as a result of the decreased ability to earn wages.”                            Norfolk

Shipbldg. & Drydock Corp. v. Hord, 193 F.3d 797, 800 (4th Cir.

1999).       LHWCA claims are governed by a burden-shifting scheme;

in order to make a successful compensation claim, “a claimant

must   first    establish     a    prima    facie      case    by   demonstrating    an

inability to return to prior employment due to a work-related

injury.”      Newport News Shipbldg. & Dry Dock Co. v. Dir., Office

of Workers’ Comp. Programs, 315 F.3d 286, 292 (4th Cir. 2002).

“If the claimant makes this showing, ‘the burden shifts to the

                                           12
employer to demonstrate the availability of suitable alternative

employment which the claimant is capable of performing.’”                                     Id.

(citation omitted).            If the employer does not itself provide

suitable       alternative     employment,            it     “‘may     demonstrate           that

[such]    employment      is   available         to    the    injured     worker        in    the

relevant labor market.’”             Id. at 293 (citation omitted).                     If the

employer meets this burden, “its obligation to pay disability

benefits is either reduced or eliminated, unless the employee

shows ‘that he diligently but unsuccessfully sought appropriate

employment.’”      Id. (citation omitted).

     As    Fifer    established        disability            by    showing       that    he    is

unable    to    return    to   his    job     at      Marine,      this   case      turns      on

whether    Marine        has    met     its        burden         of   showing      suitable

alternative employment.              In particular, Marine contends that it

offered evidence of alternative employment more lucrative than

Fifer’s    position      at    his    family’s        restaurant.            A   finding       of

higher-paying       alternative        employment            would     increase         Fifer’s

wage-earning      capacity      and    decrease        or     nullify     the     disability

payments Marine owes Fifer.

     We find the ALJ’s conclusion that Marine failed to present

suitable alternative employment erroneous for two reasons: (1)

the ALJ made findings of fact as to Fifer’s physical limitations

which were unsupported by substantial evidence in the record,

and (2), the ALJ faulted Marine for failing to address these

                                            13
limitations, imposing a heavier legal burden than our precedent

requires.

                                         1.

       First, in rejecting Marine’s labor market studies, the ALJ

emphasized     Fifer’s      “inability    to    stand   for    long    periods   of

time,”      “need    for    frequent     rest    breaks,”     and     “regimen   of

medication,”        physical   limitations       unsupported    by     substantial

evidence in the record.            J.A. 33.     Although we may not disregard

the ALJ’s findings “‘on the basis that other inferences might

have been more reasonable,’” Ceres Marine Terminals, Inc. v.

Green, 656 F.3d 235, 240 (4th Cir. 2011) (citing Newport News

Shipbldg. & Dry Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir.

1988)), there must be some evidence in the record to support the

findings.

       The ALJ’s conclusions regarding Fifer’s problems standing

and need for breaks were unsupported by the evidence in the

record.      Fifer did not testify that he had trouble standing;

instead, he indicated that he needed to take breaks during work-

hardening     in    2008    (while     performing    tasks    targeted     towards

returning him to “hard” work parameters) and that he chose to

return to his family’s restaurant because he knew he could take

breaks there without reprimand.               On one occasion, he had to lay

down   to    rest   his    back;   his   brother    testified    that    sometimes

Fifer “needs to sit down right away.”                Id. at 129.        While the

                                         14
ALJ credited Fifer’s testimony, she also credited the testimony

of Dr. Franchetti, who never mentioned standing restrictions or

rest    break    requirements,        either    in    his    testimony     or    in    the

September 2008 or October 2009 work restrictions.                      In fact, Dr.

Franchetti indicated that Fifer’s physical limitations did not

bar him from restaurant work.                   Further, the most recent FCE

indicated       that    Fifer   could     stand       “frequent[ly]”        and       walk

“const[antly]” within light work parameters.                   J.A. 371.

       The ALJ also emphasized Fifer’s medication regimen as a

barrier to employment, ultimately faulting Marine for failing to

address    Fifer’s      medication-related           restrictions     in   its    labor

market    studies.        The   ALJ    indicated       that   the    security     guard

positions Marine offered would likely require drug tests which

Fifer would fail.          Nothing in the record, however, indicated

that Fifer’s medications interfered with his ability to find

work.     There was no evidence to support the ALJ’s conclusion

that     security      guards   routinely       undergo       drug   testing,         that

prescription painkillers cause applicants to fail required drug

tests, or that Fifer’s regimen would bar Fifer from employment.

The ALJ’s determination that Fifer could not qualify for the

security    guard      positions      because    of    his    medication    was       thus

unsupported by any evidence, much less substantial evidence.




                                          15
                                      2.

      Second, the ALJ’s emphasis on Fifer’s standing, rest break,

and medication-related restrictions led her to fault Marine for

overlooking them in its labor market studies.                 The ALJ thus

penalized Marine for failing to address restrictions of which it

was   unaware,    imposing    too   heavy   a   responsibility   under    the

LHWCA’s burden-shifting scheme.        This was legal error, for which

we vacate the underlying decision and order.           See Universal Mar.

Corp. v. Moore, 126 F.3d 256, 264-65 (4th Cir. 1997) (vacating

the BRB’s decision and remanding after holding that the ALJ’s

imposition of too great a burden on the employer to demonstrate

suitable alternative employment was an error of law); Trans-

State Dredging v. Benefits Review Board, 731 F.2d 199, 201 (4th

Cir. 1984) (reversing the BRB and remanding after finding that

requiring   the    employer    to   contact     prospective   employers    to

determine whether they would hire someone with the claimant’s

abilities “place[d] too heavy a burden upon the employer”).

      We have held that, to meet its burden, “an employer must

present evidence that a range of jobs exists which is reasonably

available and which the disabled employee is realistically able

to secure and perform.”       Lentz v. Cottman Co., 852 F.2d 129, 131

(4th Cir. 1988).      There must be “a reasonable likelihood, given

the claimant’s age, education, and vocational background that he

would be hired if he diligently sought the job[s]” the employer

                                      16
presents.        Id. (quoting Trans-State Dredging, 731 F.2d at 201).

Demonstrating a single job opening is not enough.                       Id.    Once the

employer has presented a range of appropriate jobs, however,

“the employer need not contact prospective employers to inform

them of the qualifications and limitations of the claimant and

to determine if they would in fact consider hiring the candidate

for their position.”           Universal Mar., 126 F.3d at 264.                Nor must

the employer “contact the prospective employers in his survey to

obtain     their     specific     job     requirements         before     determining

whether the claimant would be qualified for such work.”                             Id.

Rather,     if    the    employer     demonstrates        “the    availability       of

specific    jobs    in   a   local    market,”     he    may   rely     “on    standard

occupational       descriptions      to   fill   out     the   qualifications       for

performing such jobs.”          Id. at 265.

     Marine relied on the physical restrictions of which it was

aware to present a range of suitable positions for Fifer.                         Prior

to   the   hearing,      Dr.    Franchetti       never    indicated       a    standing

restriction or a rest break requirement; to the contrary, after

giving his revised October 2009 restrictions, he indicated that

“cooking, deliveries and takeout,” as well as managerial work,

would comport with Fifer’s physical restrictions.                             J.A. 390.

Marine relied on the restrictions it knew of to prepare labor

market studies, updating those reports as it became aware of

revised restrictions.

                                          17
       Marine    cannot     be    faulted          for     failing         to      account    for

restrictions      which    were    unannounced             prior      to     the    hearing,    a

conclusion      underscored       by    the     ALJ’s          unfounded        findings     with

respect to Fifer’s medication-related restrictions.                                  While the

record    corroborated      the    fact        that       Fifer       took      medication     to

manage    his    pain,     neither      his        nor     his     treating         physician’s

testimony       supports    the        conclusion          that       Fifer’s        medication

interfered with his ability to obtain employment.                                   Indeed, as

discussed above, nothing in the record indicated that security

guards    must    undergo     drug      tests        to        qualify     for      employment.

Faulting Marine for failing to address unfounded restrictions

turns the employer’s showing of suitable alternative employment

into a moving target.

       Moreover, the ALJ overstated Marine’s burden of presenting

suitable    alternative      employment.                 The    third      labor     study,    at

least, described with requisite specificity the responsibilities

of a restaurant manager or assistant manager using the DOT.                                    We

have     expressly    approved          the        use     of     the      DOT’s      “standard

occupational      descriptions         to     fill       out    the     qualifications”        of

suitable alternative employment in LHWCA cases.                              Universal Mar.,

126 F.3d at 265.           In Universal Maritime, we explained that we

sanction the use of the DOT’s occupational descriptions because

“the claimant is able to correct any overbreadth in a survey by

demonstrating the failure of his good faith effort to secure

                                              18
employment” once the burden shifts back to the employee.                                Id. at

264-65.        Therefore,      the     ALJ’s      rejection      of     the    third        labor

market study for failing to describe “the specific duties of

the[] positions” demands more than we require.                        J.A. 33.

       Further,       Marine      produced         at     least       four      alternative

positions which the ALJ recognized would “accommodate [Fifer’s]

lifting restrictions.”               J.A.    33.        Although “the employer need

not     contact      prospective       employers         to    inform         them     of     the

qualifications and limitations of the claimant,” Universal Mar.,

126     F.3d    at    264,    Sappington        communicated          Fifer’s        “physical

limitations as [he] understood them” to the potential employers

in     order    to    determine       whether      the    jobs    were        realistically

available to Fifer, J.A. 168.                  Because Dr. Franchetti’s lifting

and sitting restrictions were the only restrictions of which

Marine    was     aware      prior    to    the    hearing,       and    because        Marine

presented       several      suitable        positions        which     the      ALJ        found

comported      with    those    restrictions,            we   conclude        that    the     ALJ

erred in finding that Marine failed to meet its burden under the

Act.

       Since     Marine      demonstrated         the    availability          of    suitable

alternative employment which Fifer is capable of performing, the

burden should have shifted to Fifer to prove he could not obtain

more    lucrative      employment          despite      his   diligent        effort.          We

therefore vacate the final Decision and Order of the BRB, and

                                             19
remand this matter for further proceedings consistent with this

opinion.



                              III.

     For the foregoing reasons, Marine’s petition for review is

granted, the Decision and Order of the BRB is vacated, and the

claim is remanded for further proceedings.

                                             VACATED AND REMANDED




                               20
