UNPUBLISHED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Petition denied by unpublished per curiam opinion.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.,
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 Respondent. 

Unpublished opinions are not binding precedent in this circuit.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 several ALJ decisions over the course of this case were supported by substantial evidence and involved no legal errors, we deny the petition

for review. 

I.

Arnold Swiger, who is seventy-three, worked in coal mine employment 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

2 CONSOLIDATION COAL CO. v. SWIGER
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 pneumoconiosis. 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

CONSOLIDATION COAL CO. v. SWIGER 3
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 indicated 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 radiological evidence. The parties submitted a total of fifty-two x-ray interpretations, only thirty-nine of which conformed to the classification

requirements set forth in 20 C.F.R. § 718.102. Of the thirty-nine qualifying x-rays, nine were read positive for pneumoconiosis and thirty

were read negative. The positive interpretations included eight readings 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 evidence, the ALJ concluded that "the radiological evidence neither precludes 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 history 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 combination of tobacco and asthma. Dr. Fino reviewed the medical evidence

compiled from 1993-2001 and found that although Swiger was suffering from a respiratory impairment, his condition improved following

the use of bronchodilator medication. Because bronchodilators have

4 CONSOLIDATION COAL CO. v. SWIGER
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 factor to his loss of function." J.A. 883. Dr. Abrahams examined Swiger

in 1999 and found that although there was no sign of clinical pneumoconiosis, Swiger was suffering from chronic bronchitis caused by cigarette 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 established the presence of pneumoconiosis by a preponderance of the evidence. 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 proposed 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 ruling that Swiger’s letter of 1993 constituted a valid request for modification; (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

CONSOLIDATION COAL CO. v. SWIGER 5
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 irrational 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 disregarded 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 letter, but Hardesty said he could not exclude the possibility that the letter had arrived and been misplaced or destroyed. Swiger’s counsel

filed an affidavit setting forth several specific instances in which documents relating to various black lung claims had been lost or otherwise 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, especially the repeated use of the term "you," suggested that Swiger was

6 CONSOLIDATION COAL CO. v. SWIGER
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 telephone call placed to the DOL, was a timely modification request pursuant 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 evidence, or merely further reflection on the evidence initially submitted." 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 erroneous 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 procedures. 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

CONSOLIDATION COAL CO. v. SWIGER 7
"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 claimant 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 telephone 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 subsequently 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 Consolidation Coal Co. v. Borda, 171 F.3d 175, our court reviewed a similar 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. There8 CONSOLIDATION COAL CO. v. SWIGER
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 election 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 supported 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

CONSOLIDATION COAL CO. v. SWIGER 9
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 administrative 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 suggesting that Swiger had, on previous occasions, discarded outdated documents 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 presumption 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 precluded 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, accompa10 CONSOLIDATION COAL CO. v. SWIGER
nied by Swiger’s inconsistent testimony, constitutes substantial evidence supporting the ALJ’s determination that Swiger never elected

review of his Part B claim, thereby making Consolidation the appropriate 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 determine 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 insufficient 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 modification. 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 condition before considering his 1997 claim. Swiger only had to demonstrate 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

CONSOLIDATION COAL CO. v. SWIGER 11
Drs. Rasmussen, Abrahams, and Koenig, while discounting the opinions 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 cigarette 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. However . . . the foregoing [x-ray] evidence was inconclusive.

[3] It certainly did not rule out "Legal Pneumoconiosis." [4]

Furthermore, those same physicians cited the partial reversibility 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 opinions of Drs. Rasmussen, Abrahams, and Koenig that the

miner’s totally disabling respiratory or pulmonary impairment is due to a combination of factors, including pneumoconiosis. 

12 CONSOLIDATION COAL CO. v. SWIGER
J.A. 888-89. Consolidation argues that the ALJ’s first reason for crediting 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 argument is correct, it fails to address the several additional reasons underlying the ALJ’s decision. Specifically, the ALJ’s comments make it

clear that he also discounted the opinions of Drs. Bellotte, Branscomb, Renn, Fino, and Rosenberg because they: (1) relied on negative 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 Rosenburger all make specific references to the fact that Swiger’s chest xrays were negative and use this as a reason weighing against the existence 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 pneumoconiosis . . . 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 respiratory and pulmonary impairments arising out of coal mine employCONSOLIDATION COAL CO. v. SWIGER 13
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 discredited 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 example: Dr. Renn says that coal dust exposure would not cause an "obstructive 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 pneumoconiosis," J.A. 645-46; Dr. Bellotte says that he associates restrictive

pulmonary impairments with pneumoconiosis and obstructive impairments with smoking. Meanwhile, Dr. Branscomb admitted that in the

last ten years he has not diagnosed a single patient as having pneumoconiosis unless there was positive x-ray evidence. These comments

support the ALJ’s findings that the employer’s physicians were overwhelmingly 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 bronchodilator 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 bronchodilator 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 causing his pulmonary condition. As a trier of fact, the ALJ "must evaluate 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

14 CONSOLIDATION COAL CO. v. SWIGER
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 crediting the opinions of Drs. Rasmussen, Abrahams, and Koenig were satisfactory 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 factor to Swiger’s total disability. However, each of these physicians also

found that Swiger’s disability was caused in part by smoking and conceded 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, cigarette smoking, or coal mine dust . . . doctors need not make such particularized findings. The ALJ needs only to be persuaded, on the basis

of all available evidence, that pneumoconiosis is a contributing cause

CONSOLIDATION COAL CO. v. SWIGER 15
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 unreasonably 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 matters. 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 experience with Mr. Cohen, seeing him in part, and seeing his professionalism, 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. 

16 CONSOLIDATION COAL CO. v. SWIGER
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 representation, the qualifications of the representative, the complexity of the

legal issues involved . . . and any other information which may be relevant 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 experience 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 Consolidation Coal Company’s petition for review. 

PETITION DENIED

CONSOLIDATION COAL CO. v. SWIGER 17