Consolidation Coal Co. v. Swiger , 98 F. App'x 227 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CONSOLIDATION COAL COMPANY, 
Petitioner,
v.
ARNOLD E. SWIGER; DIRECTOR,  No. 03-1971
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(02-618-BLA; 02-618-BLA-A)
Argued: February 25, 2004
Decided: May 11, 2004
Before WILKINS, Chief Judge, MICHAEL, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
Petition denied by unpublished per curiam opinion.
COUNSEL
ARGUED: William Steele Mattingly, JACKSON KELLY, P.L.L.C.,
Morgantown, West Virginia, for Petitioner. Robert F. Cohen, Jr.,
COHEN, ABATE & COHEN, Morgantown, West Virginia, for
Respondent Swiger; Rita A. Roppolo, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
2 CONSOLIDATION COAL CO. v. SWIGER
for Federal Respondent. ON BRIEF: Howard M. Radzely, Acting
Solicitor of Labor, Donald S. Shire, Associate Solicitor, Patricia M.
Nece, Counsel for Appellate Litigation, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Federal Respon-
dent.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Consolidation Coal Company petitions for review of a decision by
the Benefits Review Board (BRB) affirming an Administrative Law
Judge (ALJ)’s award of benefits to Arnold E. Swiger under the Black
Lung Benefits Act, 30 U.S.C. § 901 et seq. Because each of the sev-
eral ALJ decisions over the course of this case were supported by sub-
stantial evidence and involved no legal errors, we deny the petition
for review.
I.
Arnold Swiger, who is seventy-three, worked in coal mine employ-
ment for forty years before leaving the industry on January 31, 1992.
Most of his employment was spent inside the mines. Swiger smoked
approximately one-half pack of cigarettes a day from the early 1950s
until 1979, when he developed Legionnaire’s disease. Although
Swiger no longer smokes cigarettes, he continues to smoke four to
five bowls of pipe tobacco a day.
Swiger first applied for federal black lung benefits in the early
1970s. The Social Security Administration (SSA) denied benefits in
a letter dated July 25, 1973, and Swiger did not appeal the decision.
He filed a second application for benefits on February 1, 1990, which
was denied by a district director on June 26, 1990. In 1992 Swiger
CONSOLIDATION COAL CO. v. SWIGER 3
filed his third application for benefits and requested an administrative
hearing. On July 12, 1993, ALJ Victor Chao determined that although
Swiger had established the presence of a totally disabling respiratory
impairment, he had failed to establish the presence of pneumoconio-
sis. Accordingly, the ALJ denied benefits. Swiger alleges that on
August 10, 1993, he mailed a letter to the Department of Labor
(DOL) stating, "I protest this claim . . . you state I am disabled due
to smoking. But you have disregarded 40 1/4 years in the mines." J.A.
40. Approximately two months after sending the letter, Swiger called
the DOL to check on the status of his case. After being informed that
the DOL had never received his letter of protest, Swiger decided to
"give up." J.A. 803.
In 1997 Swiger filed his fourth application for black lung benefits
and retained counsel for the first time. As an initial matter, Swiger
argued that his 1992 application for benefits was still pending because
his letter to the DOL, dated August, 10 1993, constituted a valid
appeal of the ALJ’s denial of benefits. ALJ Richard Morgan held a
formal administrative hearing on the matter and ruled that the letter,
although not an appeal, constituted a timely request for modification
pursuant to 20 C.F.R. § 725.310. Because the request had never been
finally denied, the ALJ merged Swiger’s fourth application, dated
January 7, 1997, into the still-pending 1992 claim. The ALJ also
found that Swiger’s file was in total disarray. He therefore remanded
the case to the district director’s office, asking it to reconstruct the file
and to provide each of the parties an opportunity to obtain and submit
new medical evidence.
Following the remand, Swiger’s counsel sent a cover letter to the
district director’s office informing it of Swiger’s initial application for
black lung benefits in the early 1970s. Enclosed with the letter was
a copy of the SSA document, dated July 25, 1973, that denied Swiger
benefits. After contacting several sources within the SSA, the district
director determined that "a claim was filed [in 1973], almost certainly
denied, forwarded to the Federal Records Center in 1980, and the file
was destroyed in 1985 or 1986." J.A. 808.
Soon thereafter, Consolidation sought to be dismissed from the
case as the responsible operator, claiming that Swiger was never sent
an election card informing him of his right to appeal his 1973 Part B
4 CONSOLIDATION COAL CO. v. SWIGER
claim. See 20 C.F.R. §§ 725.496, 410.704. Consolidation and Swiger
both took the position that the SSA’s failure to provide an election
card meant that Swiger’s Part B claim, originally denied on July 25,
1973, was still alive, thereby allowing him to elect review of that
claim. See id. § 410.704. If Swiger could make this election, liability
for his case would be transferred from Consolidation to the Black
Lung Disability Trust Fund. See id. § 725.496. ALJ Michael Lesniak
held a hearing to resolve the issue and, on April 16, 2001, denied
Consolidation’s motion to be dismissed as a responsible operator.
ALJ Lesniak concluded that the preponderance of the evidence indi-
cated that Swiger had been sent an election card and failed to return
it to the government, thereby waiving his right to review of his Part
B claim. See id. § 410.704(d).
With the procedural issues resolved, ALJ Lesniak proceeded to
hold a hearing on Swiger’s eligibility for black lung benefits. In a
written opinion dated May 8, 2002, the ALJ first considered the radio-
logical evidence. The parties submitted a total of fifty-two x-ray inter-
pretations, only thirty-nine of which conformed to the classification
requirements set forth in 20 C.F.R. § 718.102. Of the thirty-nine qual-
ifying x-rays, nine were read positive for pneumoconiosis and thirty
were read negative. The positive interpretations included eight read-
ings made by seven different dual qualified B-readers/radiologists,
and twelve of the negative interpretations were made by five different
dual qualified B-readers/radiologists. Based on this conflicting evi-
dence, the ALJ concluded that "the radiological evidence neither pre-
cludes nor establishes pneumoconiosis." J.A. 877.
The ALJ next considered the conflicting medical reports of twelve
physicians, only eight of which are relevant here. Drs. Bellotte, Renn,
Fino, Branscomb, and Rosenburg all concluded that Swiger did not
have pneumoconiosis. Dr. Bellotte found that Swiger was suffering
from a chronic obstructive pulmonary disease (COPD) due to his his-
tory of smoking, asthma, and possibly cardiovascular problems. Dr.
Renn examined Swiger on three occasions and determined that he was
suffering from a totally disabling impairment caused by a combina-
tion of tobacco and asthma. Dr. Fino reviewed the medical evidence
compiled from 1993-2001 and found that although Swiger was suffer-
ing from a respiratory impairment, his condition improved following
the use of bronchodilator medication. Because bronchodilators have
CONSOLIDATION COAL CO. v. SWIGER 5
no effect on pulmonary impairments caused by coal dust, Dr. Fino
reasoned that Swiger must be suffering from the effects of smoking
and asthma. Drs. Branscomb and Rosenburger reiterated many of the
findings of Drs. Bellotte, Renn, and Fino.
Dr. Rasmussen examined Swiger in 1997 and found that he was
suffering from a lung impairment due to the combined effects of
asthma, coal mine dust, and smoking. Dr. Rasmussen concluded that
"[pneumoconiosis] must be considered a significant contributing fac-
tor to his loss of function." J.A. 883. Dr. Abrahams examined Swiger
in 1999 and found that although there was no sign of clinical pneumo-
coniosis, Swiger was suffering from chronic bronchitis caused by cig-
arette smoking and coal dust exposure, thereby constituting a form of
legal pneumoconiosis. See 20 C.F.R. § 718.201(a). Finally, Dr.
Koenig concluded that Swiger had a fully disabling form of COPD
that was caused by the combined effects of smoking and coal mine
dust exposure.
The ALJ credited the opinions of Drs. Rasmussen, Abrahams, and
Koenig over the five doctors who concluded that Swiger had failed
to establish the presence of pneumoconiosis. The ALJ then weighed
all of the relevant evidence together and ruled that Swiger had estab-
lished the presence of pneumoconiosis by a preponderance of the evi-
dence. The ALJ also determined that Swiger had satisfied the other
elements necessary to a black lung claim, had established grounds for
modification under 20 C.F.R. § 725.310, and was entitled to benefits
commencing in April of 1992.
Shortly after the ALJ’s decision on eligibility, Swiger filed an
application for attorney’s fees pursuant to 20 C.F.R. §§ 725.365,
725.366, and 725.367. Consolidation opposed the hourly rate pro-
posed by Swiger’s counsel, but the ALJ upheld the requested fee in
an order dated November 22, 2002.
Consolidation appealed four issues to the BRB: (1) the ALJ’s rul-
ing that Swiger’s letter of 1993 constituted a valid request for modifi-
cation; (2) the ALJ’s denial of Consolidation’s motion to be dismissed
as the responsible operator; (3) the award of black lung benefits; and
(4) the award of attorney’s fees. On June 13, 2003, the BRB affirmed
6 CONSOLIDATION COAL CO. v. SWIGER
on all grounds. Consolidation now petitions this court for a review of
the BRB’s decision on the same four grounds.
II.
A.
We turn first to the question of whether Swiger’s letter of August
10, 1993, to the DOL constituted a request for modification of ALJ
Chao’s denial of benefits. Consolidation argues that: (1) it was irratio-
nal to find that the letter was a request for modification because even
Swiger argued that the letter was intended to be an appeal; and (2) a
letter may only be treated as a request for modification if it is actually
received by the government. We disagree on both counts.
During an administrative hearing the ALJ heard testimony from
Swiger and Robert Hardesty, District Director of the DOL’s Office of
Workers’ Compensation Programs in West Virginia. Swiger testified
that on August 10, 1993, he sent a letter addressed to the Parkersburg,
West Virginia, office of the DOL. According to Swiger, the purpose
of the letter was to appeal ALJ Chao’s denial of benefits, dated July
12, 1993. The text of the letter stated, in part, that "I protest this claim
. . . You state that I am disabled due to smoking. But you have disre-
garded 40 1/4 yr. in the mines." J.A. 40. Swiger further testified that
two months after he sent the letter, he called the DOL to inquire about
his appeal. Upon being informed that the letter had not been received
and that the 30-day appeal period had passed, Swiger "gave up" and
filed a new application for benefits in January of 1997. Meanwhile,
Director Hardesty testified that he had no record of Swiger’s 1993 let-
ter, but Hardesty said he could not exclude the possibility that the let-
ter had arrived and been misplaced or destroyed. Swiger’s counsel
filed an affidavit setting forth several specific instances in which doc-
uments relating to various black lung claims had been lost or other-
wise mishandled by the DOL in West Virginia.
The ALJ found that Swiger had sent his letter to the DOL, but that
it was not received by the department within the 30-day appeal
period. The ALJ also found that the letter did not establish an intent
to file a notice of appeal because: (1) the language of the letter, espe-
cially the repeated use of the term "you," suggested that Swiger was
CONSOLIDATION COAL CO. v. SWIGER 7
addressing the ALJ who issued the order rather than requesting
review by the BRB; and (2) the letter was sent to the DOL, whereas
the regulations instruct that appeals are to be sent to the BRB. See 20
C.F.R. § 802.204. Although the letter was not considered to be an
appeal, the ALJ did find that the letter, in conjunction with the tele-
phone call placed to the DOL, was a timely modification request pur-
suant to 20 C.F.R. § 725.310. Accordingly, the ALJ ruled that
Swiger’s claim of April 28, 1992, had never been finally denied and
therefore merged Swiger’s 1997 claim into his 1992 claim.
The procedures governing modification requests under the Black
Lung Benefits Act are contained in 20 C.F.R § 725.310, which states:
Upon his or her own initiative or upon the request of any
party on grounds of a change in conditions or because of a
mistake in a determination of fact, the district director may,
at any time before . . . one year after denial of a claim,
reconsider the terms of an award or denial of benefits.
This procedure "permits the correction of mistaken factual findings
. . . whether demonstrated by wholly new evidence, cumulative evi-
dence, or merely further reflection on the evidence initially submit-
ted." Betty B Coal Co. v. Director, O.W.C.P., 194 F.3d 491, 497 (4th
Cir. 1999). Our circuit has interpreted the modification provisions
"expansively, recognizing that black lung proceedings are by nature
informal and that the principle of finality just does not apply to . . .
black lung claims as it does in ordinary lawsuits." Consolidation Coal
Co. v. Borda, 171 F.3d 175, 180 (4th Cir. 1999) (citations omitted).
Accordingly, a request for modification "need not meet formal
criteria," id. at 181, and "almost any sort of correspondence from the
claimant can constitute a request for modification of a denial, as long
as it is timely and expresses dissatisfaction with a purportedly errone-
ous denial," Betty B Coal, 194 F.3d at 497. "In short, the modification
procedure is flexible, potent, [and] easily invoked." Id.Consolidation recognizes the liberality of the modification proce-
dures. However, in this case it argues that Swiger’s letter could not
constitute a request for modification because Swiger took the position
that the letter was intended as an appeal. We disagree. The Supreme
Court has said that the label attached to a request for modification is
8 CONSOLIDATION COAL CO. v. SWIGER
"irrelevant . . . so long as the action in fact comes within the scope
of the section." Banks v. Chicago Grain Trimmers Ass’n, Inc., 390
U.S. 459, 465 n.8 (1968). Likewise, our circuit has held that "a claim-
ant does not forfeit the advantages of modification just because . . .
his filing is styled as a new claim." Betty B Coal Co., 194 F.3d at 497.
These statements indicate that the content of the purported request for
modification controls the analysis, rather than the label attributed to
it. Because the language of the letter was indicative of a request for
modification, the ALJ could rightfully discount Swiger’s testimony.
To hold otherwise would interfere with the ALJ’s role as trier of fact.
Consolidation also argues that "a letter never received and tele-
phone call fail to constitute a valid modification request." Petitioner’s
Brief at 17. But in this case the ALJ’s determination clearly implies
that the letter was received by the DOL. The ALJ first found that
Swiger mailed the letter. He then credited an affidavit submitted by
Swiger’s counsel indicating that the West Virginia DOL office had
lost similar materials on previous occasions. Finally, the ALJ noted
that District Director Hardesty conceded that Swiger’s letter may
have been lost or destroyed. The clear implication of these findings
is that the letter was sent by Swiger, received by the DOL, and subse-
quently lost by the agency. See Crace v. Kentland-Elkhorn Coal
Corp., 109 F.3d 1163, 1166 (6th Cir. 1997) (courts will presume that
letter placed in mail "reached [its] destination in the usual time and
[was] received by the person to whom [it was] addressed"). In Con-
solidation Coal Co. v. Borda, 171 F.3d 175, our court reviewed a sim-
ilar case in which a claimant sent a letter to the DOL seeking review
of a district director’s denial of benefits. When the government
informed the claimant that it did not have a copy of the letter in its
files, he abandoned his case. Several years later, the claimant filed a
new application for benefits. We held that the lost letter was properly
construed as a request for modification, stating that "if the absence of
the letter from the government’s file is attributable to bureaucratic
bungling, that cannot strip [petitioner] of his claim. The content and
context of the letter itself, and not the Director’s reaction to it, must
govern whether it was a request for modification." Id. at 181. Borda
makes it clear that where, as here, the letter’s absence from the DOL
files is a result of "bureaucratic bungling," the ALJ should focus on
the "content and context" of the letter to determine whether it was a
request for modification. In this case the ALJ did exactly that. There-
CONSOLIDATION COAL CO. v. SWIGER 9
fore, we conclude that the ALJ committed no error in construing
Swiger’s letter as a request for modification. Accordingly, Swiger’s
1992 claim remains viable, and the ALJ properly merged his 1997
application for benefits claim into the still-pending 1992 claim. Id. at
182.
B.
The next question we address is whether the ALJ erred in denying
Consolidation’s motion to be dismissed as the responsible operator in
this case. Consolidation argues that Swiger’s 1973 application for
benefits is still open because the government never sent him an elec-
tion card as required by federal law. This would have the effect of
transferring liability for Swiger’s case to the Black Lung Disability
Trust Fund. Because we conclude that the ALJ’s decision was sup-
ported by substantial evidence, we reject Consolidation’s argument.
When Swiger first applied for benefits sometime in the early
1970s, his claim was governed by Part B of Title IV of the Federal
Coal Mine Health and Safety Act of 1969, which was titled the Black
Lung Benefits Act (BLBA). Part B was a federally funded program
originally administered by the Social Security Administration. Crace,
109 F.3d at 1165. In 1977 and 1981 Congress passed a series of
amendments to the BLBA that made it easier for claimants to qualify
for black lung benefits by liberalizing the entitlement criteria. Id. at
1165-66. The amendments also permitted all claimants who had been
denied benefits prior to March 1, 1978, to have their cases reopened
and reviewed under the new, more lenient eligibility standards. Id.Finally, the amendments established the Black Lung Disability Trust
Fund to pay for any costs associated with these reopened cases,
thereby relieving coal mine operators from unanticipated liability.
The regulations implementing the 1977 and 1981 amendments
required the government to notify all eligible Part B claimants of their
rights. See 20 C.F.R. § 410.704(a). Eligible parties were to be sent a
letter of notice explaining the changes in the law, accompanied by an
election card that a claimant had to fill out if he wanted his case
reopened under the new provisions. If the election card was not
returned to the government within six months, the claimant waived
10 CONSOLIDATION COAL CO. v. SWIGER
the right to have his case reopened unless he established good cause
for the untimely response. Id. at § 410.704(d).
In this case Consolidation concedes that Swiger never returned an
election card, but it argues that his failure to respond was justified
because the government never sent him a card. During an administra-
tive hearing, Swiger testified that he had no recollection of receiving
an election card and further asserted that he would have a copy of the
card if it had been sent because he "kept everything" related to his
black lung claims. In response, the DOL introduced an SSA computer
printout showing that the government had sent Swiger an election
card and that no response was ever received. The ALJ ruled that in
light of the printout, it was more likely than not that an election card
was sent to Mr. Swiger, noting that "the fact that [the Swigers] do not
recall a particular piece of mail 22-1/2 years after the fact does not
establish that it was not received." J.A. 813. The ALJ also found that
Swiger’s statements were somewhat inconsistent. Specifically, Swiger
claimed that he kept all documents related to his black lung cases, but
the only document he had relating to his 1973 benefits application
was a single letter denying his claim. The ALJ reasoned that there
must have been more documents related to that case, thereby suggest-
ing that Swiger had, on previous occasions, discarded outdated docu-
ments related to his black lung claims.
Consolidation argues that the ALJ’s findings on the election card
issue are not supported by substantial evidence. We disagree. The
Sixth Circuit has held that when the government introduces computer
data indicating that an election card was sent, it is entitled to a pre-
sumption that the card "reached [its] destination in the usual time and
[was] received by the person to whom [it was] addressed." Crace, 109
F.3d at 1166 (citing Hagner v. United States, 285 U.S. 427, 430
(1932)). Consolidation recognizes this presumption, but argues that
we should not apply it in this case because the government’s printout
shows that the election card allegedly sent to Swiger may have been
addressed to "Mr. Swinger." However, the ALJ specifically addressed
this possibility and found that the misspelling "would not have pre-
cluded the card receipt in the normal and ordinary course." J.A. 813.
There is evidence in the record showing that Swiger had received
mail sent by the SSA while living at the same address, despite similar
misspellings of his last name. We believe the SSA printout, accompa-
CONSOLIDATION COAL CO. v. SWIGER 11
nied by Swiger’s inconsistent testimony, constitutes substantial evi-
dence supporting the ALJ’s determination that Swiger never elected
review of his Part B claim, thereby making Consolidation the appro-
priate party in this case.
C.
Consolidation also appeals the ALJ’s decision to award benefits.
The company alleges four separate errors: (1) the ALJ failed to deter-
mine that there was a material change in Swiger’s condition between
his 1992 application for benefits and his 1997 application; (2) the ALJ
provided an insufficient explanation for crediting certain medical
opinions while discounting others; (3) the ALJ failed to determine
whether Swiger was suffering from asthma; and (4) there was insuffi-
cient evidence in the record to prove that Swiger’s disability was
caused by coal mine dust.
1.
Consolidation first argues that the ALJ failed to determine that
Swiger has shown a material change in condition between his 1992
application for benefits and his 1997 application for benefits. See,
e.g., Lisa Lee Mines v. Director, O.W.C.P., 86 F.3d 1358 (4th Cir.
1996). In section II.A we upheld the ALJ’s determination that
Swiger’s 1992 claim remains open because of his request for modifi-
cation. As we said, the legal effect of that determination is that
Swiger’s 1997 claim has been merged into the 1992 claim. Therefore,
the ALJ was not required to find any material change in Swiger’s con-
dition before considering his 1997 claim. Swiger only had to demon-
strate a material change in his condition between his 1990 application
for benefits and his 1992 application. The ALJ specifically found a
material change in condition over that time period, and the evidence
supports that finding. Accordingly, we find no error in the ALJ’s
treatment of the issues relating to the material change in condition.
2.
Consolidation next argues that the ALJ did not adequately explain
why he favored the reasoning contained in the medical opinions of
12 CONSOLIDATION COAL CO. v. SWIGER
Drs. Rasmussen, Abrahams, and Koenig, while discounting the opin-
ions of Drs. Bellotte, Branscomb, Renn, Fino, and Rosenberg.
Although an ALJ must "explain why he credited certain evidence and
discredited other evidence," Milburn Colliery Co. v. Hicks, 138 F.3d
524, 533 (4th Cir. 1998), our court has repeatedly recognized that "the
duty of explanation is not intended to be a mandate for administrative
verbosity or pedantry. If a reviewing court can discern what the ALJ
did and why he did it, the duty of explanation is satisfied." Piney
Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10 (4th Cir. 1999)
(citing Lane Hollow Coal Co. v. Director, O.W.C.P, 137 F.3d 799,
803 (4th Cir. 1998)).
In this case the ALJ included a lengthy statement explaining why
he credited the reports of Drs. Rasmussen, Abrahams, and Koenig
over those of Drs. Bellotte, Branscomb, Renn, Fino and Rosenberg.
Specifically, the ALJ stated that:
[1] [T]he opinions of Drs. Rasmussen, Abrahams, and
Koenig are more consistent with the miner’s complaints of
worsening breathing problems; the miner’s 40 year coal
mine employment history ending in 1992; Claimant’s ciga-
rette smoking history which ended in 1979; his ongoing pipe
smoking history; and, the abnormal recent clinical test
results. [2] Several of the physicians cited by Employer
relied, at least in part, upon "negative" x-ray evidence. How-
ever . . . the foregoing [x-ray] evidence was inconclusive.
[3] It certainly did not rule out "Legal Pneumoconiosis." [4]
Furthermore, those same physicians cited the partial revers-
ibility shown on pulmonary function testing as inconsistent
with pneumoconiosis because that disease is progressive.
Although the partial reversibility may be more consistent
with findings of asthma or smoking-induced lung disease
than pneumoconiosis, the recent pulmonary function studies,
including those performed post-bronchodilator, still revealed
significant abnormalities which are consistent with the opin-
ions of Drs. Rasmussen, Abrahams, and Koenig that the
miner’s totally disabling respiratory or pulmonary impair-
ment is due to a combination of factors, including pneumo-
coniosis.
CONSOLIDATION COAL CO. v. SWIGER 13
J.A. 888-89. Consolidation argues that the ALJ’s first reason for cred-
iting the opinions of Drs. Rasmussen, Abrahams, and Koenig was
insufficient because all of the medical experts explained how their
respective diagnoses were consistent with Swiger’s symptoms. See
Petitioner’s Brief at 25. Regardless of whether Consolidation’s argu-
ment is correct, it fails to address the several additional reasons under-
lying the ALJ’s decision. Specifically, the ALJ’s comments make it
clear that he also discounted the opinions of Drs. Bellotte, Bran-
scomb, Renn, Fino, and Rosenberg because they: (1) relied on nega-
tive x-ray evidence, while the ALJ found the totality of the x-ray
evidence to be inconclusive; (2) focused on "clinical" rather than
"legal" pneumoconiosis; and (3) did not adequately explain why
Swiger continued to show a significant pulmonary impairment after
a bronchodilator had been administered. Because we believe there is
substantial evidence in the record supporting each of these reasons
and because "it is the province of the ALJ to evaluate the physicians’
opinions," Island Creek Coal Co. v. Compton, 211 F.3d 203, 211 (4th
Cir. 2000), we find no error in the ALJ’s explanations.
The opinions of Drs. Bellotte, Branscomb, Renn, Fino, and Rosen-
burger all make specific references to the fact that Swiger’s chest x-
rays were negative and use this as a reason weighing against the exis-
tence of pneumoconiosis. Because the ALJ determined that the x-ray
evidence was inconclusive rather than negative, he could rightfully
discount the medical opinions that contradicted his findings. See, e.g.,
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 441 (4th Cir.
1997) (stating that it was error when "the ALJ ignored evidence that
one of the physicians who diagnosed [the claimant] with pneumoconi-
osis . . . reached his conclusion on the basis of a discredited x-ray
examination").
The record also contains evidence that each of these five physicians
focused on "clinical" (or "medical") pneumoconiosis rather than
"legal" pneumoconiosis. "Clinical" pneumoconiosis refers to "the
lung disease caused by fibrotic reaction of the lung tissue to inhaled
dust, which is generally visible on chest x-ray films as opacities."
Hobbs v. Clinchfield Coal Co., 917 F.2d 790, 791 fn.1 (4th Cir.
1990). However the BLBA also covers "legal pneumoconiosis,"
which is defined as any "chronic, restrictive, or obstructive respira-
tory and pulmonary impairments arising out of coal mine employ-
14 CONSOLIDATION COAL CO. v. SWIGER
ment." Freeman United Coal Mining Co. v. Summers, 272 F.3d 473,
481 (7th Cir. 2001) (emphasis added). See also 20 C.F.R.
§ 718.201(a)(2). Four out of the five physicians whom the ALJ dis-
credited concluded that Swiger did not have pneumoconiosis because
his impairment was obstructive in nature, despite the fact that legal
pneumoconiosis may consist of an obstructive impairment. For exam-
ple: Dr. Renn says that coal dust exposure would not cause an "ob-
structive ventilatory defect," J.A. 676, 679; Dr. Rosenburger says that
"clinically significant obstructive lung disease . . . is not associated
with coal mine dust exposure," J.A. 254-55; Dr. Fino says that
Swiger’s symptoms demonstrate "obstructive lung disease . . .
[which] is not a pattern consistent with the contraction of lung tissue
due to fibrosis as would be expected in simple coal workers pneumo-
coniosis," J.A. 645-46; Dr. Bellotte says that he associates restrictive
pulmonary impairments with pneumoconiosis and obstructive impair-
ments with smoking. Meanwhile, Dr. Branscomb admitted that in the
last ten years he has not diagnosed a single patient as having pneumo-
coniosis unless there was positive x-ray evidence. These comments
support the ALJ’s findings that the employer’s physicians were over-
whelmingly focused on clinical rather than legal pneumoconiosis.
Finally, we also agree with the BRB that the "administrative law
judge’s finding[ ] that the opinions of Drs. Rasmussen, Koenig, and
Abrahams were more persuasive because they were supported by the
presence of a non-reversible impairment . . . constitute[s] [a] valid
reason for crediting their opinions over those of employer’s experts."
J.A. 899. The evidence shows that when Swiger was given bronc-
hodilator medication, his pulmonary condition improved, but the
residual impairment that remained was still disabling. All the experts
agree that pneumoconiosis is a fixed condition and therefore any lung
impairment caused by coal dust would not be susceptible to bronc-
hodilator therapy. In this case, although Swiger’s condition improved
when given a bronchodilator, the fact that he experienced a disabling
residual impairment suggested that a combination of factors was caus-
ing his pulmonary condition. As a trier of fact, the ALJ "must evalu-
ate the evidence, weigh it, and draw his own conclusions."
Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949 (4th Cir. 1997).
Therefore, the ALJ could rightfully conclude that the presence of the
residual fully disabling impairment suggested that coal mine dust was
CONSOLIDATION COAL CO. v. SWIGER 15
a contributing cause of Swiger’s condition. See Freeman, 272 F.3d at
482-83.
In sum, we conclude that the ALJ’s several explanations for credit-
ing the opinions of Drs. Rasmussen, Abrahams, and Koenig were sat-
isfactory and supported by substantial evidence.
3.
Consolidation next argues that the ALJ erred by failing to decide
whether the evidence showed that Swiger had non-occupational
asthma. In order "to be entitled to benefits, a claimant must prove by
a preponderance of the evidence that his pneumoconiosis was at least
a contributing cause of his totally disabling respiratory impairment."
Robinson v. Pickens Mather & Co., 914 F.2d 35, 38 (4th Cir. 1990).
Therefore, once the ALJ determined that coal mine dust exposure was
a contributing cause of Swiger’s condition, it was irrelevant whether
asthma was also present.
4.
Finally, Consolidation argues that there was insufficient evidence
to conclude that Swiger’s disabling pulmonary impairment was
caused by coal dust exposure. Drs. Rasmussen, Abrahams, and
Koenig each said that coal mine dust exposure was a contributing fac-
tor to Swiger’s total disability. However, each of these physicians also
found that Swiger’s disability was caused in part by smoking and con-
ceded that it was difficult to differentiate between the effects caused
by smoking and the effects caused by coal mine dust. Consolidation
argues that because these physicians could not apportion the relative
effects of tobacco use and coal mine dust exposure, their opinions
could not be used to support a finding that Swiger’s condition was
caused by coal mine dust. We disagree.
Although these physicians "could not determine with any precision
what percentage of [Swiger’s] impairment was caused by asthma, cig-
arette smoking, or coal mine dust . . . doctors need not make such par-
ticularized findings. The ALJ needs only to be persuaded, on the basis
of all available evidence, that pneumoconiosis is a contributing cause
16 CONSOLIDATION COAL CO. v. SWIGER
of the miner’s disability." Freeman, 272 F.3d at 483. In this case Drs.
Rasmussen, Koenig, and Abrahams unequivocally concluded that
coal mine dust exposure was a contributing factor to Swiger’s total
disability. That was enough evidence to support the ALJ’s decision.
At least two other circuits have reached the same conclusion on this
exact issue. See id.; Cornett v. Benham Coal, Inc., 227 F.3d 569, 576
(6th Cir. 2000).
D.
Consolidation next argues that the hourly rate the ALJ awarded to
Swiger’s counsel under the BLBA fee-shifting provisions was unrea-
sonably high. An ALJ’s "award of attorney’s fees is discretionary,
and will be upheld on appeal unless arbitrary, capricious, an abuse of
discretion, or contrary to law." Kerns v. Consolidation Coal Co., 176
F.3d 802, 804 (4th Cir. 1999). Because the ALJ relied on proper
criteria in awarding attorney’s fees, we affirm the ALJ’s judgement.
Swiger’s counsel, Robert F. Cohen, Jr., applied for attorney’s fees
pursuant to 20 C.F.R. § 725.366 and requested a rate of $225.00 an
hour. Consolidation objected to this figure, noting that Cohen’s firm
charged a maximum of $175.00 an hour in most civil litigation mat-
ters. In response, Cohen argued that the rate was justified because of
his expertise in the black lung field and because other ALJ’s have
awarded him a similar rate in the past. The ALJ ruled that $225.00
was reasonable, stating that:
Mr. Cohen is winning far more cases than many other [black
lung] attorneys. These black lung cases are very hard to win.
Mr. Cohen is probably, in my experience, and I have seen
him for many years, the strongest Claimant’s lawyer in the
field . . . he is more or less setting the standard. So I’m
going to go along with the other judges in this office and
award the $225 rate . . . I’m relying on my personal experi-
ence with Mr. Cohen, seeing him in part, and seeing his pro-
fessionalism, reading his briefs, and comparing him with
other attorneys that come before me, and also what he has
been awarded as attorney’s fees in the past.
S.J.A. 77-78.
CONSOLIDATION COAL CO. v. SWIGER 17
Consolidation argues that "these reasons are inadequate as a matter
of law to justify approval of the hourly rate requested." Petitioner’s
Brief at 47. The black lung regulations state that "any fee [approved
by the court] . . . shall take into account the quality of the representa-
tion, the qualifications of the representative, the complexity of the
legal issues involved . . . and any other information which may be rel-
evant to the amount of fee requested." 20 C.F.R. § 725.366(b). The
ALJ’s comments clearly indicate that the award was based, in part, on
both the quality of Cohen’s representation and his previous experi-
ence in black lung cases. Under the controlling regulations, there was
nothing unreasonable about awarding a higher hourly rate based on
these factors. See id.; see also Zeigler Coal Co. v. Director, O.W.C.P.,
326 F.3d 894, 902 n.9 (7th Cir. 2003) (upholding ALJ’s awarded
hourly rate where "counsel indicated that he charged this higher rate
because of his experience with black lung cases"). Furthermore,
Cohen has been awarded similar fees in comparable cases. See Spell
v. McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987). Therefore, the
ALJ’s award of attorney’s fees was not an abuse of discretion.
III.
We agree with the Benefits Review Board that the ALJs in this
case made no errors of law, that their findings of fact are supported
by substantial evidence in the record as a whole, and that Arnold
Swiger qualifies for black lung benefits. Accordingly, we deny Con-
solidation Coal Company’s petition for review.
PETITION DENIED