PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WESTMORELAND COAL COMPANY,
Petitioner,
v.
LLOYD A. COX; DIRECTOR, OFFICE No. 09-1240
OF WORKERS’ COMPENSATION
PROGRAMS,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(08-0313-BLA; 08-0577-BLA)
Argued: January 28, 2010
Decided: April 8, 2010
Before MICHAEL and DUNCAN, Circuit Judges, and
R. Bryan HARWELL, United States District Judge
for the District of South Carolina,
sitting by designation.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Duncan wrote the opinion, in which Judge
Michael and Judge Harwell joined.
COUNSEL
ARGUED: Douglas Allan Smoot, JACKSON KELLY,
PLLC, Charleston, West Virginia, for Petitioner. Ryan Chris-
2 WESTMORELAND COAL v. COX
topher Gilligan, WOLFE, WILLIAMS, RUTHERFORD &
REYNOLDS, Norton, Virginia, for Respondents. ON
BRIEF: Kathy L. Snyder, JACKSON KELLY, PLLC, Mor-
gantown, West Virginia, for Petitioner. Joseph E. Wolfe,
WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS,
Norton, Virginia, for Respondent Lloyd A. Cox.
OPINION
DUNCAN, Circuit Judge:
This is a petition for review from a decision of the Benefits
Review Board (the "BRB") affirming the Administrative Law
Judge’s (the "ALJ") award of benefits and attorney’s fees
under the Black Lung Benefits Act (the "Act"), 30 U.S.C.
§§ 901 et seq. Petitioner Westmoreland Coal Company
("Westmoreland") argues that the ALJ’s decision awarding
benefits was contrary to law and unsupported by substantial
evidence. Westmoreland also argues that the ALJ’s award of
attorney’s fees was improperly calculated. We find the award
of benefits legally proper and supported by substantial evi-
dence, and we therefore affirm that award. However, we find
that the ALJ erred in granting an award of attorney’s fees
without first determining a prevailing hourly rate for the attor-
ney’s work. That award must therefore be reconsidered in
light of this opinion.
I.
Respondent Lloyd A. Cox worked for Westmoreland as a
coal miner for approximately thirty years. On April 16, 2002,
Cox filed an application for benefits under the Act, which
grants benefits to former miners afflicted with pneumoconio-
sis, also known as black lung disease. See 30 U.S.C. § 901(a).
His claim was denied on November 10, 2004. Cox brought a
second claim on December 19, 2005. The District Director of
WESTMORELAND COAL v. COX 3
the Office of Workers’ Compensation Programs issued a Pro-
posed Decision and Order denying benefits on August 11,
2006. Upon Cox’s request for a hearing, the case was trans-
ferred to the Office of Administrative Law Judges for a for-
mal hearing to determine whether he was eligible for benefits.
In order to prove eligibility under the Act, Cox had to show
that he was totally disabled because of pneumoconiosis
caused by his coal-mining employment. See 30 U.S.C.
§§ 901, 921; 20 C.F.R. §§ 718.202-204, 725.202. Because
more than one year had passed since the denial of Cox’s first
claim, he also had to establish that "one of the applicable con-
ditions of entitlement . . . ha[d] changed since the date upon
which the order denying the prior claim became final." 20
C.F.R. § 725.309(d).
The Act provides a statutory presumption of total disability
resulting from pneumoconiosis where the coal miner suffers
from:
a chronic dust disease of the lung which (A) when
diagnosed by chest [x-ray], yields one or more large
opacities (greater than one centimeter in diameter)
. . . , (B) when diagnosed by biopsy or autopsy,
yields massive lesions in the lung, or (C) when diag-
nosis is made by other means, would be a condition
which could reasonably be expected to yield results
described in clause (A) or (B) if diagnosis had been
made in the manner prescribed in clause (A) or (B).
30 U.S.C. § 921(c)(3). The ALJ based her analysis largely on
this statutory presumption under § 921(c)(3). We summarize
the evidence relevant to Cox’s claim below.1
1
All of the evidence discussed in this section was newly presented evi-
dence that was not submitted as part of Cox’s original 2004 claim.
4 WESTMORELAND COAL v. COX
A.
Cox began seeking medical help for lung problems in 1995.
On January 24, 1995, Cox underwent a computerized tomog-
raphy ("CT") scan of his lungs. Upon reviewing the image,
Dr. T.C. Lepsch observed an opacity in the upper part of
Cox’s right lung and recommended that chest x-rays be per-
formed in the future to determine whether the opacity cleared.
On March 17, 1998, Cox had a consultation with Dr. S. S.
Tholpady, who concluded that Cox had coal worker’s pneu-
moconiosis. Dr. Larry Forster saw Cox on October 22, 1998,
examined Cox’s most recent x-rays, and found that there were
opacities that were likely caused by coal worker’s pneumoco-
niosis.
In 2002 Cox underwent a number of tests that revealed a
pulmonary mass which several doctors interpreted as either
pneumoconiosis or cancer. In April and May of 2002 Dr.
Michael Baron reviewed Cox’s x-rays and performed a
bronchoscopy. According to Dr. Baron, both tests indicated
signs that could represent pneumoconiosis or cancer. He rec-
ommended that Cox undergo additional testing to rule out
cancer. On October 1, 2002, Cox had a chest scan, which was
interpreted by Dr. G. Thomas Haines. Dr. Haines noted a
large mass, measuring 4.2 by 4.7 centimeters, in the upper
lobe of Cox’s right lung. On October 24, 2002, Cox saw Dr.
William Messerschmidt for a consultation on this pulmonary
mass. Dr. Messerschmidt determined that the approximately
5-centimeter mass was probably due to coal worker’s pneu-
moconiosis, but could also be due to cancer.2 Dr. Messersch-
midt had Cox tested for cancer through a needle biopsy and
bronchoscopy. Both tests were negative for cancer. Following
the cancer tests, on December 11, 2002, Dr. John Hutchison
conducted another CT scan which confirmed that Cox had a
2
Cox also underwent a lung biopsy on October 31, 2002, which was
examined by Dr. D. R. Hudgens. Dr. Hudgens stated that the biopsy
showed possible signs of pneumoconiosis.
WESTMORELAND COAL v. COX 5
large mass, measuring approximately 4 by 3.5 centimeters, in
the upper lobe of his right lung.
In 2003 Cox again underwent several tests that showed
signs of pneumoconiosis. On January 13, 2003, he saw Dr. J.
Randolph Forehand, who interpreted Cox’s x-rays as showing
pneumoconiosis. On August 7, 2003, Cox had an x-ray, which
was interpreted by Dr. Donald Rasmussen. Dr. Rasmussen
saw large opacities attributable to pneumoconiosis, but noted
that cancer was also a possibility.
In 2005 the possibility of cancer was raised once again. On
January 6, 2005, Cox saw Dr. Roger McSharry. Dr. McSharry
reviewed Cox’s most recent CT scan and saw a dominant
right lung lesion and multiple left lung lesions. That same
day, Dr. McSharry conducted a bronchoscopy. He found that
the masses were likely due to pneumoconiosis, but decided to
undertake testing to rule out cancer.3 Dr. Jack Bechtel then
conducted an examination of the cells of the tissue of Cox’s
right upper lung. Dr. Bechtel concluded that the tissue showed
no signs of cancer. He also noted that the examination results
were consistent with pneumoconiosis.
In 2006 Cox again had several tests showing signs of pneu-
moconiosis. On January 30, 2006, Cox had a chest x-ray,
which Dr. Forehand interpreted as showing pneumoconiosis.
On February 23, 2006, Cox underwent a CT scan reviewed by
Dr. Jandre Ward, who determined that the scan showed typi-
cal signs of pneumoconiosis. On March 16, 2006, Cox had an
x-ray which was interpreted by Dr. Ward. Dr. Ward saw a
mass in the center of Cox’s right lung measuring approxi-
mately three centimeters. He found that the mass was compat-
ible with a diagnosis of pneumoconiosis.
3
As the ALJ made clear, none of Westmoreland’s experts reviewed the
results of this biopsy.
6 WESTMORELAND COAL v. COX
Beginning in May 2006, several doctors retained by West-
moreland evaluated Cox and his medical records. On May 2,
2006, Dr. Richard Naeye examined the results of Cox’s biop-
sies performed in 2002. He concluded that there was not
enough tissue in the biopsy specimens to make a specific
diagnosis of coal worker’s pneumoconiosis.
Cox saw Dr. Kirk Hippensteel at the request of Westmore-
land on June 1, 2006. Dr. Hippensteel noted an opacity larger
than four centimeters. He opined, however, that the opacity
was likely not due to pneumoconiosis because it was partly
calcified in a manner inconsistent with pneumoconiosis. He
also noted that the waxing and waning of the opacity was con-
sistent with granulomatous inflammation. Dr. Hippensteel
concluded that the opacity could be due either to histoplasmo-
sis or to granulomatous disease.
On July 6, 2006, Drs. John Scatarige and William Scott
reviewed Cox’s x-rays at Westmoreland’s request and inter-
preted them as not showing pneumoconiosis. Dr. Scott also
interpreted several CT scans from November 1998 and Febru-
ary 2006. He found that the masses shown were likely not due
to pneumoconiosis because they did not have a background of
small rounded opacities. Dr. Scott opined that they were more
likely due to tuberculosis or histoplasmosis.4
On July 10, 2006, Cox underwent another CT scan, which
was reviewed by his doctor, Dr. Srikumar Gopalan. Dr. Gopa-
lan noted a large density measuring 5.4 by 3.6 centimeters in
the right upper lobe. Dr. Kathleen DePonte also reviewed that
CT scan and noted an opacity of at least five centimeters in
diameter in the right lung and several smaller opacities in the
left. She concluded that the test showed classic findings of
pneumoconiosis. Dr. Scott reviewed these results and deter-
4
In 1998 Cox had a test performed to determine whether he had ever
been exposed to tuberculosis. The test was negative.
WESTMORELAND COAL v. COX 7
mined that the masses were likely caused by tuberculosis or
histoplasmosis.
On August 29, 2006, Dr. Jerome Wiot examined Cox’s x-
rays at the request of Westmoreland and interpreted them as
not showing pneumoconiosis. Dr. Wiot opined that the opaci-
ties could be due to sarcoidosis.
On February 27, 2007, Dr. David Rosenberg, Westmore-
land’s expert, issued a report evaluating Cox’s medical
records. He found that Cox did not exhibit some of the com-
mon symptoms of pneumoconiosis and concluded that he did
not have pneumoconiosis. Dr. Rosenberg testified via deposi-
tion on May 30, 2007, and stated that, of all the conflicting
x-ray interpretations, he found Dr. Wiot’s to be most reliable
because of his vast experience in the area. He also testified
that the calcified mass seen in the tests was consistent not
with pneumoconiosis but rather with a post-infectious inflam-
matory reaction. However, Dr. Rosenberg noted that no tests
had been done for sarcoidosis, the possible disease identified
by Dr. Wiot, or for histoplasmosis, the possible disease identi-
fied by Drs. Scott and Hippensteel. He acknowledged that fur-
ther testing would be necessary to establish those diagnoses.
On July 2, 2007, Westmoreland’s expert, Dr. Paul Wheeler,
evaluated one of Cox’s x-rays from 2006 and found it to be
negative for pneumoconiosis.
B.
In Cox’s second claim, all of the above-mentioned medical
evidence was presented to the ALJ for evaluation. On January
14, 2008, the ALJ issued an order finding in favor of Cox.
She concluded that Cox had "established that he is entitled to
the presumption of total disability due to complicated pneu-
moconiosis." J.A. 483. She further concluded that, while the
evidence before the ALJ who denied Cox’s 2004 claim was
not sufficient to establish statutory complicated pneumoconio-
8 WESTMORELAND COAL v. COX
sis, the newly submitted medical evidence showed a change
in circumstances because it conclusively established that Cox
suffered from the condition. She therefore held that Cox was
entitled to benefits under the Act. On April 1, 2008, the ALJ
issued an order granting an award of $9,775.00 in fees to be
paid by Westmoreland for Cox’s attorney, Joseph Wolfe, and
his staff.
Westmoreland appealed both orders to the BRB. On Janu-
ary 27, 2009, the BRB issued a Decision and Order affirming
the award of benefits and the award of fees. This petition for
review followed.
II.
Westmoreland makes five assertions of error with regard to
the ALJ’s decision. First, Westmoreland argues that the ALJ
misapplied the relevant legal standard by shifting the burden
to Westmoreland to show that Cox did not suffer from statu-
tory complicated pneumoconiosis. Second, Westmoreland
asserts that the ALJ’s decision was not supported by substan-
tial evidence because she based her finding on one biopsy
result from 2005, which did not show statutory complicated
pneumoconiosis. Third, Westmoreland argues that the ALJ
erred in excluding the opinions of Westmoreland’s experts
who found that the opacities were due to diseases other than
pneumoconiosis. Fourth, Westmoreland contends that the ALJ
erred in failing to consider evidence predating Cox’s 2004
claim. Finally, Westmoreland argues that the ALJ erred in her
calculation of the reasonable hourly rate for Cox’s attorney.
We address each contention below.
On appeal, "we must affirm the decision of the ALJ if it is
in accordance with law and is supported by substantial evi-
dence." Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 756
(4th Cir. 1999). "We review the ALJ’s and the Board’s con-
clusions of law de novo to determine whether they are rational
and consistent with applicable law." Milburn Colliery Co. v.
WESTMORELAND COAL v. COX 9
Hicks, 138 F.3d 524, 528 (4th Cir. 1998). In determining
whether the evidence supporting the decision is substantial,
we evaluate whether it is "of sufficient quality and quantity as
a reasonable mind might accept as adequate to support the
finding under review." Piney, 176 F.3d at 756 (internal quota-
tions omitted). "An ALJ’s award of attorney’s fees is discre-
tionary, 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).
A.
We turn first to Westmoreland’s assertion that the ALJ
applied the wrong legal standard by shifting the burden to
Westmoreland to disprove the existence of statutory compli-
cated pneumoconiosis. The Act mandates "payments of bene-
fits in respect of total disability of any miner due to
pneumoconiosis." 30 U.S.C. § 921(a). To be eligible for those
benefits, a claimant must establish (1) the existence of pneu-
moconiosis, (2) that the pneumoconiosis arose out of coal
mine employment, and (3) that the pneumoconiosis is totally
disabling.5 See 30 U.S.C. §§ 901, 921; 20 C.F.R. §§ 718.202-
204, 725.202. Prongs 1 and 3 can both be satisfied by the
application of a statutory presumption under 30 U.S.C.
§ 921(c)(3). As mentioned above, that section applies an irre-
buttable presumption that the claimant is totally disabled due
to pneumoconiosis if he is suffering:
from a chronic dust disease of the lung which (A)
when diagnosed by chest [x-ray], yields one or more
large opacities (greater than one centimeter in diam-
5
There is no dispute in this case that Cox successfully established the
second factor above. Under 30 U.S.C. § 921(c)(1), "[i]f a miner who is
suffering or suffered from pneumoconiosis was employed for ten years or
more in one or more coal mines there shall be a rebuttable presumption
that his pneumoconiosis arose out of such employment." Cox worked as
a coal miner for over thirty years and was therefore entitled to the pre-
sumption, which Westmoreland has not attempted to rebut.
10 WESTMORELAND COAL v. COX
eter) . . . , (B) when diagnosed by biopsy or autopsy,
yields massive lesions in the lung, or (C) when diag-
nosis is made by other means, would be a condition
which could reasonably be expected to yield results
described in clause (A) or (B) if diagnosis had been
made in the manner prescribed in clause (A) or (B).
30 U.S.C. § 921(c)(3). The condition described by § 921(c)(3)
is known as statutory "complicated pneumoconiosis." Double
B Mining, Inc. v. Blankenship, 177 F.3d 240, 242-43 (4th Cir.
1999).
This court has previously made clear that, throughout the
claim adjudication process, "[t]he claimant retains the burden
of proving the existence of" statutory complicated pneumoco-
niosis. Lester v. Dir., OWCP, 993 F.2d 1143, 1146 (4th Cir.
1993). We have also set out a detailed legal framework for
establishing the irrebuttable presumption of § 921(c)(3). In,
Eastern Associated Coal Corp. v. Director, OWCP,
("Scarbro"), 220 F.3d 250 (4th Cir. 2000), we explained:
Prongs (A), (B), and (C) are stated in the disjunctive;
therefore a finding of statutory complicated pneumo-
coniosis may be based on evidence presented under
a single prong. But the ALJ must in every case
review the evidence under each prong of § 921(c)(3)
for which relevant evidence is presented to deter-
mine whether complicated pneumoconiosis is pres-
ent. . . . Thus, even where some x-ray evidence
indicates opacities that would satisfy the require-
ments of prong (A), if other x-ray evidence is avail-
able or if evidence is available that is relevant to an
analysis under prong (B) or prong (C), then all of the
evidence must be considered and evaluated to deter-
mine whether the evidence as a whole indicates a
condition of such severity that it would produce
opacities greater than one centimeter in diameter on
an x-ray.
WESTMORELAND COAL v. COX 11
Id. at 256 (internal citations omitted).
Westmoreland asserts that the ALJ erred in her application
of the law because, instead of placing the burden on Cox to
prove the existence of complicated pneumoconiosis, she
placed the burden on Westmoreland to prove that the opaci-
ties seen in the evidence were not due to pneumoconiosis. In
support of its position, Westmoreland cites the following pas-
sage from the ALJ’s opinion:
In addition to establishing the existence of a one centi-
meter6 or greater opacity, [§ 921(c)(3)]7 requires that
the etiology of these opacities be coal-dust related.
Under Scarbro, once the Claimant establishes this
etiology, the Employer must provide evidence that
affirmatively shows the opacities are not there or that
they are from a disease process other than compli-
cated pneumoconiosis.
J.A. 477 (footnote call numbers added). According to West-
moreland, this language shows that the ALJ interpreted Scar-
bro as holding that, once the claimant presented x-ray
evidence of a large opacity "the burden shifts to the employer
to rule out the existence of complicated pneumoconiosis."
Petitioner’s Br. at 18. We are not persuaded by Westmore-
land’s interpretation of the ALJ’s language.
6
Westmoreland argues that the ALJ erred in finding that the statutory
presumption required evidence "of a one centimeter or greater opacity,"
J.A. 477, when in actuality it requires evidence of opacities "greater than
one centimeter in diameter," 30 U.S.C. § 921(c)(3). Although Westmore-
land is correct in this assertion, we agree with the BRB’s finding that this
error is harmless "because the physicians, including those designated by
employer, agree that the opacity seen on claimant’s x-rays is greater than
one centimeter in diameter." J.A. 497 n.8. In fact all the relevant evidence
showed that the opacity measured more than three centimeters.
7
The ALJ consistently referred to the statutory presumption at issue as
being pursuant to 20 C.F.R. § 718.304. 20 C.F.R. § 718.304 is the regula-
tion that implements the presumption established by 30 U.S.C.
§ 921(c)(3). The two provisions contain the same language.
12 WESTMORELAND COAL v. COX
The passage of the ALJ’s opinion quoted above is consis-
tent with our statement in Scarbro that:
[I]f the x-ray evidence vividly displays opacities
exceeding one centimeter, its probative force is not
reduced because the evidence under some other
prong is inconclusive or less vivid. Instead, the x-ray
evidence can lose force only if other evidence affir-
matively shows that the opacities are not there or are
not what they seem to be, perhaps because of an
intervening pathology, some technical problem . . . ,
or incompetence of the reader.
Scarbro, 220 F.3d at 256 (emphasis added). In following this
language in Scarbro, the ALJ did not, as Westmoreland sug-
gests, require Westmoreland to prove that the opacities were
due to something other than pneumoconiosis.8 She simply
stated that the clear evidence of large opacities would support
the presumption unless the record contained "affirmative evi-
dence" showing either that the opacities did not exist or that
they were due to something else, such as a disease other than
pneumoconiosis. She highlighted throughout her opinion that
"[t]he claimant has the burden of proving the existence of
pneumoconiosis, as well as every element of entitlement, by
8
Westmoreland claims that the ALJ’s approach is identical to what this
court found impermissible in our unpublished opinion in Clinchfield Coal
Co. v. Lambert, 206 F. App’x 252 (4th Cir. 2006) (per curiam). However,
in that case, the court remanded the ALJ’s decision because the ALJ mis-
interpreted Scarbro as requiring that the employer’s evidence "‘persua-
sively establish’ (as opposed to ‘affirmatively show’)" that the opacities
did not exist or were due to a disease other than pneumoconiosis. Id. at
255. The court found that this approach misapplied the law by shifting the
burden of persuasion to the employer rather than requiring mere produc-
tion of affirmative evidence. In the present case there is no evidence that
the ALJ tasked Westmoreland with persuading her that the opacities were
due to something other than pneumoconiosis. Rather, she found that West-
moreland had not presented any affirmative evidence supporting that
assertion. Her approach was therefore consistent with Scarbro and did not
mistakenly shift the burden of persuasion to Westmoreland.
WESTMORELAND COAL v. COX 13
a preponderance of the evidence." J.A. 473. She further noted
that, in addition to showing that the opacities existed, Cox
"must also establish that they are due to pneumoconiosis."
J.A. 479.
The ALJ’s opinion makes clear that she found the presump-
tion established not because she had placed any unmet burden
on Westmoreland, but rather because the evidence in the
record did not "amount to affirmative evidence sufficient to
cause [Cox’s] evidence satisfying [§ 921(c)(3)] . . . to lose
force." J.A. 483. This approach is consistent with Scarbro and
therefore legally proper.
B.
Next we consider Westmoreland’s argument that the ALJ’s
decision was not supported by substantial evidence. West-
moreland reasons that the "ALJ found the 2005 biopsy was
sufficient to diangos[e] complicated pneumoconiosis," but the
biopsy alone did not establish statutory complicated pneumo-
coniosis because it did not show opacities measuring more
than one centimeter. Petitioner’s Br. at 27.
Westmoreland misinterprets the ALJ’s analysis. While the
ALJ did state that the 2005 biopsy established that Cox suf-
fered from pneumoconiosis under 20 C.F.R. § 718.202(a),9
she did not state that it was sufficient to establish statutory
complicated pneumoconiosis pursuant to 30 U.S.C.
§ 921(c)(3). The ALJ made it clear in her opinion that she was
basing her award of benefits not on 20 C.F.R.
§ 718.202(a)(2), but rather on the statutory "presumption of
9
20 C.F.R. § 718.202(a) does not require that the evidence show opaci-
ties of any particular size. It simply states: "A biopsy or autopsy conducted
and reported in compliance with § 718.106 may be the basis for a finding
of the existence of pneumoconiosis." 20 C.F.R. § 718.202(a)(2). Unlike a
claimant proceeding under the presumption of 30 U.S.C. § 921(c)(3), a
claimant establishing pneumoconiosis under 20 C.F.R. § 718.202(a) must
separately show that he is totally disabled as a result of the disease.
14 WESTMORELAND COAL v. COX
total disability due to complicated pneumoconiosis" of 30
U.S.C. § 921(c)(3). J.A. 483. Therefore, contrary to West-
moreland’s assertion, her finding that the biopsy was suffi-
cient to satisfy 20 C.F.R. § 718.202(a)(2) does not imply that
she found the biopsy alone to be sufficient to establish the
presumption of statutory complicated pneumoconiosis under
30 U.S.C. § 921(c)(3).
In fact, the ALJ’s finding of statutory complicated pneumo-
coniosis was based on all of the available medical evidence,
not just the 2005 biopsy. In her evaluation of the evidence
under § 921(c)(3), the ALJ found that "there [was] no dispute
that [Cox] has large masses in his lungs, and that these masses
show as opacities of at least one [centimeter] on his x-rays."
J.A. 479. Indeed, there was no dispute that the x-rays showed
at least one mass measuring more than three centimeters in
the upper part of Cox’s right lung. This finding was also sup-
ported by several CT scans and other medical tests. West-
moreland’s experts did not dispute the existence of a large
mass. Instead, they asserted that the mass was likely due to
one of a number of other possible diseases. The ALJ rejected
their conclusions as equivocal and speculative, and found that
they did not constitute affirmative evidence sufficient to show
that the opacities were not due to pneumoconiosis. As we
explain in section II.C below, that finding was proper. The
ALJ also reasoned that because the 2005 biopsy showed signs
of pneumoconiosis or cancer, and cancer had since been ruled
out, the record strongly indicated that pneumoconiosis was
what caused the opacities found in Cox’s tests. Finally, the
ALJ noted that none of Westmoreland’s experts had reviewed
the 2005 biopsy or questioned its results.
Following her detailed evaluation of the evidence, the ALJ
stated:
Upon reviewing all of the evidence together, I find
that [Cox] has established that he is entitled to the
presumption of total disability due to complicated
WESTMORELAND COAL v. COX 15
pneumoconiosis. I find that the preponderance of the
persuasive evidence establish[ed] that [Cox] has a
condition that has resulted in the presence of a large
opacity on x-ray, due to his more than thirty years of
occupational exposure to coal dust.
J.A. 483. Thus, contrary to Westmoreland’s assertion, it is
clear from the ALJ’s opinion that her conclusion was based
not on the 2005 biopsy, but rather on an evaluation of all of
the evidence before her. This approach was legally proper
under Scarbro. See Scarbro, 220 F.3d at 256 (explaining that,
in the ALJ’s analysis of whether the claimant established the
§ 921(c)(3) presumption, "all of the evidence must be consid-
ered and evaluated to determine whether the evidence as a
whole indicates a condition of such severity that it would pro-
duce opacities greater than one centimeter in diameter on an
x-ray").
Upon reviewing all the relevant evidence, the ALJ found
that the consistent x-ray evidence of large opacities, when
considered in light of the other evidence of pneumoconiosis
including CT scans, medical interpretations, and the 2005
biopsy, was sufficient to establish statutory complicated pneu-
moconiosis under § 921(c)(3). We find that the evidence in
the record is certainly "of sufficient quality and quantity as a
reasonable mind might accept as adequate to support" that
finding. Piney, 176 F.3d at 756 (internal quotations omitted).
The finding is therefore supported by substantial evidence.
C.
Next we consider Westmoreland’s argument that the ALJ
incorrectly disregarded the opinions of Westmoreland’s
experts. Westmoreland asserts that the ALJ erred in finding
that Westmoreland did not present affirmative evidence show-
ing that the opacities shown in the x-rays were due to a dis-
ease other than pneumoconiosis. Specifically, it argues that
she erred in rejecting the opinions of Westmoreland’s experts
16 WESTMORELAND COAL v. COX
finding that the opacities were likely due to tuberculosis, his-
toplasmosis, granulomatous disease, or sarcoidosis. We dis-
agree.
The ALJ discussed the opinions of each of Westmoreland’s
experts who said the opacities might be due to something
other than pneumoconiosis. Dr. Scott believed that the masses
were likely due to tuberculosis or histoplasmosis because they
had no background of small rounded opacities. Dr. Hippen-
steel thought they were likely due to histoplasmosis or to a
non-infectious granulomatous disease because they showed
calcification and changes in size. Dr. Wiot opined that the
opacities could be due to sarcoidosis. None of the doctors dis-
cussed whether any of the diseases could occur in conjunction
with pneumoconiosis. In addition, none of them pointed to
evidence that Cox was suffering from any of the alternative
diseases mentioned or discussed whether the tests showed any
signs inconsistent with those diseases. Finally, none of the
doctors reviewed or opined upon the results of the 2005
biopsy.
The ALJ made the following findings about Westmore-
land’s experts’ opinions:
I give little weight to the opinions of Dr. Hippen-
steel, Dr. Rosenberg, and Dr. Wiot, whose views are
based on a limited and selective review of the new
medical evidence, and who, in the case of Dr.
Hippensteel and Dr. Rosenberg, have not adequately
explained how their conclusions are supported by the
objective medical evidence. . . .
....
I find the interpretations of Dr. Wheeler, Dr. Scott,
and Dr. Wiot, as well as the opinions by Dr. Rosen-
berg, to be speculative regarding the etiology of the
large masses . . . . [T]he Employer’s physicians
WESTMORELAND COAL v. COX 17
merely speculated that the large masses . . . were
attributable to another disease process, without sub-
stantiation or corroboration, and without consider-
ation of critical medical evidence bearing on this
issue. . . . [They] speculate without basis that [the]
. . . objective evidence must be due to something
other than pneumoconiosis.
These interpretations are equivocal, in that they do
not make a diagnosis or an "objective determina-
tion," but instead speculate on the various possible
etiologies for the abnormalities or masses that they
acknowledge are there.
J.A. 482-83.10 The ALJ therefore found that, because they
were speculative and equivocal, these opinions did not consti-
tute affirmative evidence sufficient to show that the opacities
seen in the medical exams were due to something other than
pneumoconiosis.
We previously affirmed the BRB’s approval of a very simi-
lar approach by the same ALJ who authored the opinion at
issue in this case. In Barker v. Westmoreland Coal Co.,
OWCP, BRB No. 03-0553 BLA (May 28, 2004), as here, the
ALJ similarly rejected the opinions of several of the same
experts that presented evidence in this case, including Drs.
Wheeler, Scott, Scatarige, and Hippensteel. As in this case,
the doctors opined in Barker that the opacities present in the
claimant’s medical evidence were due to diseases other than
pneumoconiosis. Drs. Scott, Scatarige, and Wheeler all
thought the opacities were due to tuberculosis. In a very simi-
lar diagnosis to the one he gave in this case, Dr. Hippensteel
suspected that the opacities were due to granulomatous dis-
10
The ALJ also expressed skepticism regarding the opinion of one of
Cox’s doctors, Dr. Forehand, stating: "I do not give significant weight to
the conclusions of Dr. Forehand, who relied solely on his interpretation of
[Cox’s] x-rays, and the 2002 biopsy results." J.A. 482 n.12.
18 WESTMORELAND COAL v. COX
ease because they showed signs of calcification and of size
changes.
In Barker, the ALJ rejected the evidence as speculative
because there was no evidence in the record showing that the
claimant had any of the alternative diseases. She therefore
found that the experts’ opinions did not constitute affirmative
evidence sufficient to weaken the claimant’s x-ray evidence
showing large opacities that satisfied the statutory definition
of complicated pneumoconiosis.
The BRB approved the ALJ’s reasoning, stating:
[T]he administrative law judge found the opinions of
Drs. Wheeler, Scott, Scatarige, and Hippensteel to be
equivocal as to the cause of the opacities seen on
claimant’s x-ray because they attributed the cause of
the opacities to tuberculosis or granulomatous dis-
ease when there was no evidence in the record that
claimant had ever suffered from or been exposed to
tuberculosis, or other inflammatory process, or other
disease process. Employer does not dispute that
statement. The administrative law judge, therefore,
properly rejected the evidence pointing to causes,
other than coal mine employment, for the abnormali-
ties seen on claimant’s x-rays. . . . Accordingly, we
affirm the administrative law judge’s findings that
claimant had complicated pneumoconiosis and that
the cause of claimant’s complicated pneumoconiosis
was coal mine employment.
Id. at *5 (internal citations and footnote call number omitted).
We later affirmed the BRB’s decision in an unpublished opin-
ion, stating: "The BRB affirmed the ALJ’s decision as ratio-
nal, supported by substantial evidence, and in accordance with
applicable law. After considering the joint appendix, the
briefs, and the arguments of counsel, we find no reversible
WESTMORELAND COAL v. COX 19
error." Westmoreland Coal Co. v. Barker, 136 F. App’x 583,
584 (4th Cir. 2005) (per curiam).
As was the case in Barker, Westmoreland’s evidence here
consisted of speculative alternative diagnoses that were not
based on evidence that Cox suffered from any of the diseases
suggested. Thus, we find that the ALJ’s conclusion here was
consistent with the BRB’s guidance in Barker. The ALJ acted
well within her discretion to reject opinions that she found to
be "unsupported by a sufficient rationale." Hicks, 138 F.3d at
533; Risher v. OWCP, 940 F.2d 327, 331 (8th Cir. 1991) ("An
ALJ may disregard a medical opinion that does not ade-
quately explain the basis for its conclusion."). Accordingly,
the ALJ did not err in rejecting the experts’ opinions at issue.
D.
Next we consider Westmoreland’s argument that the ALJ
wrongly failed to consider evidence predating Cox’s 2004
claim. Because Cox’s initial claim for benefits had been
denied more than a full year before he filed his 2005 claim,
his second claim was a "subsequent claim" under the Act. 20
C.F.R. § 725.309(d). As a result, Cox was required to show
that "one of the applicable conditions of entitlement . . . ha[d]
changed since the date upon which the order denying the prior
claim became final." Id. Westmoreland argues that the ALJ
erred in determining that Cox met this burden because she
failed to consider the evidence presented at the time of Cox’s
2004 claim.
Westmoreland asserts that, in failing to consider the pre-
denial evidence, the ALJ violated the requirement established
by Lisa Lee Mines v. Director, OWCP, 57 F.3d 402 (4th Cir.
1995), vacated, reh’g granted, 1995 U.S. App. LEXIS 32069
(4th Cir. Nov. 16, 1995), that the ALJ "consider whether all
of the evidence in the record, including the evidence predating
the denial of the prior claim, supports a finding of entitlement
to benefits." Id. at 406. The panel opinion cited by Westmore-
20 WESTMORELAND COAL v. COX
land was subsequently vacated by this court, and the case was
reheard en banc.11 The en banc opinion does not mention the
requirement noted by Westmoreland. In fact, the opinion
declines to endorse a similar requirement. See Lisa Lee Mines
v. Dir., OWCP, 86 F.3d 1358, 1363 n.11 (4th Cir. 1996) (en
banc) ("We do not endorse, however, the closing paragraph of
[Sharondale Corp. v. Ross, 42 F.3d 993 (6th Cir. 1994)],
where . . . the Sixth Circuit seems to have required consider-
ation of the evidence behind the earlier denial to determine
whether it ‘differs qualitatively’ from the new evidence.")
(alterations in original omitted).
We do agree with Westmoreland, however, that 20 C.F.R.
§ 725.309 indicates that the ALJ should consider evidence
submitted in connection with the prior claim. 20 C.F.R.
§ 725.309(d)(1) states: "Any evidence submitted in connec-
tion with any prior claim shall be made a part of the record
in the subsequent claim, provided that it was not excluded in
the adjudication of the prior claim." Because the ALJ must
review the entire record before making a determination, see
Scarbro, 220 F.3d at 256, it follows that she must also take
into account the existence of any pre-denial evidence.
We find that the ALJ in this case did consider such evi-
dence. The ALJ specifically referred to the evidence pre-
sented in the prior claim. She found that, while that evidence
11
Westmoreland incorrectly asserts that the Department of Labor’s com-
ments to the revised version of 20 C.F.R. § 725.309 show that section cod-
ified the quoted language of Lisa Lee, 57 F.3d 402, the vacated opinion.
The comments do not so indicate. Instead, the comments explain that the
amendments "effectuated the Fourth Circuit’s decision in Lisa Lee Mines
v. Director, OWCP, 86 F.3d 1358 (4th Cir. 1996), cert. denied, 117 S. Ct.
763 (1997)," the en banc opinion, by instituting "a threshold test which
allowed the miner to litigate his entitlement to benefits without regard to
any previous findings by producing new evidence that established any of
the elements of entitlement previously resolved against him." Regulations
Implementing the Federal Coal Mine Health and Safety Act of 1969, as
Amended, 65 Fed. Reg. 79920, 79968 (Dec. 20, 2000) (codified at 20
C.F.R. pts. 718, 722, 725, 726, 727).
WESTMORELAND COAL v. COX 21
"was not sufficient to support a finding of complicated pneu-
moconiosis, it is consistent with . . . the findings of [Cox’s]
physicians, and [her] conclusions on reviewing the newly sub-
mitted medical evidence" that Cox had since established stat-
utory complicated pneumoconiosis. J.A. 484. Therefore we
find that the ALJ fulfilled her obligation of considering all the
evidence, including the pre-denial evidence.
E.
Finally, we consider Westmoreland’s argument that the
ALJ improperly calculated the award of attorney’s fees. West-
moreland asserts that the ALJ erred by failing to base the
award on the prevailing hourly rate for the work of Joseph
Wolfe, Cox’s counsel. Although an ALJ’s discretion in craft-
ing an appropriate fee award is broad, and the fee here is not
unreasonable in sum, we are constrained to agree. We find
that the ALJ abused her discretion in not explicitly establish-
ing a prevailing hourly rate as the guide for her analysis. See
Kerns, 176 F.3d at 804 ("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.").
In support for his petition for fees, Wolfe relied on the Alt-
man Weil Survey of Law Firm Economics (2006), which lists
the hourly rates for attorneys in the South Atlantic Region and
the Middle Atlantic Region. Wolfe stated that "he knew of no
other attorneys who currently handle black lung work in Vir-
ginia or take new cases in this area of law." J.A. 488. He also
"described the practice area as very limited, and explained
how it is almost impossible to find attorneys who perform this
work." Id.
The ALJ seemed unconvinced that the Altman Weil survey
was an accurate indicator of the prevailing hourly rate for
Wolfe’s work. She stated:
I note that the range of hourly rates set out by Mr.
Wolfe covers the span between the median and the
22 WESTMORELAND COAL v. COX
ninth decile rates; it does not include the lower quar-
tile hourly rates. Additionally the "South Atlantic
Region" and "Middle Atlantic Region" encompass a
wide geographic area, which includes many large
metropolitan areas. There is no indication that the
survey figures used by Mr. Wolfe include only attor-
neys who practice in the black lung area or whether
they include attorneys who practice in all areas of
the law.
J.A. 490. In spite of her apparent view that Wolfe had not
established a prevailing rate applicable to his work, she none-
theless determined a reasonable rate on her own, taking into
account, among other factors, "the low rates of success for
claimants in black lung litigation" and "the contingent nature
of the attorneys’ fees." Id.
We have previously detailed the fee applicant’s burden in
establishing a reasonable hourly rate in the fee-shifting con-
text. In Plyler v. Evatt, 902 F.2d 273 (4th Cir. 1990), we
stated:
[D]etermination of the hourly rate will generally be
the critical inquiry in setting the "reasonable fee,"
and the burden rests with the fee applicant to estab-
lish the reasonableness of a requested rate. In addi-
tion to the attorney’s own affidavits, the fee
applicant must produce satisfactory specific evi-
dence of the prevailing market rates in the relevant
community for the type of work for which he seeks
an award. Although the determination of a "market
rate" in the legal profession is inherently problem-
atic, as wide variations in skill and reputation render
the usual laws of supply and demand largely inappli-
cable, the Court has nonetheless emphasized that
market rate should guide the fee inquiry.
Id. at 277 (internal citations and quotations omitted). We have
also noted that "[t]he market rate should be determined by
WESTMORELAND COAL v. COX 23
evidence of what attorneys earn from paying clients for simi-
lar services in similar circumstances, which, of course, may
include evidence of what the plaintiff’s attorney actually
charged his client." Depaoli v. Vacation Sales Assocs., L.L.C.,
489 F.3d 615, 622 (4th Cir. 2007) (internal quotation omit-
ted).
We recently revisited this issue in Robinson v. Equifax
Information Services, LLC, 560 F.3d 235, 245 (4th Cir. 2009),
where we found that a district court abused its discretion in
failing to determine a prevailing market rate when awarding
attorneys’ fees. The Robinson court explained:
Although we recognize that the district court
authored a very thorough memorandum opinion, we
nonetheless conclude that it abused its discretion by
awarding the hourly rates requested by [plaintiff] in
the absence of "satisfactory specific evidence of the
prevailing market rates. . . ." Plyler, 902 F.2d at 277.
. . . Examples of the type of specific evidence that
we have held is sufficient to verify the prevailing
market rates are affidavits of other local lawyers who
are familiar both with the skills of the fee applicants
and more generally with the type of work in the rele-
vant community. In this case, . . . [plaintiff] offered
no specific evidence that the hourly rates sought for
[plaintiff’s] attorneys coincided with the then pre-
vailing market rates of attorneys in the Eastern Dis-
trict of Virginia of similar skill and for similar work,
which our case law required [plaintiff] to do.
Id. at 245 (internal citations and quotations omitted).
We find that, like the district court in Robinson, the ALJ
here erred by determining a reasonable hourly rate "in the
absence of ‘satisfactory specific evidence of the prevailing
market rates.’" Id. (quoting Plyler, 902 F.2d at 277). We do
not question, as Wolfe explained and the ALJ implicitly
24 WESTMORELAND COAL v. COX
accepted, that there are few other attorneys doing similar
work in the same area. The highly regulated markets governed
by fee-shifting statutes are undoubtedly constrained and atypi-
cal. Under our precedent, however, that does not excuse the
need to ascertain a reasonable prevailing rate. See Plyler, 902
F.2d at 277. We have recognized a range of sources from
which to draw. For example, Wolfe could have submitted evi-
dence of the fees he has received in the past, see Rum Creek
Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir.
1994), or affidavits of other lawyers who might not practice
black lung law, but who "are familiar both with the skills of
the fee applicants and more generally with the type of work
in the relevant community," Robinson, 560 F.3d at 245. Fur-
thermore, the ALJ here need not have limited her consider-
ation to fees in black lung cases; other administrative
proceedings of similar complexity would also yield instruc-
tive information. Accordingly, we find that the ALJ erred in
excusing Wolfe from his well-established burden to provide
evidence of an applicable prevailing rate as a starting point for
the attorney’s fees analysis.12 We therefore vacate the fee
12
Westmoreland argues that the ALJ also erred in providing a higher
hourly rate based on risk of loss. We note that once a prevailing market
rate is established, that rate is presumed to incorporate considerations of
risk of loss. As the Supreme Court explained in City of Burlington v.
Dague, 505 U.S. 557 (1992):
The risk of loss in a particular case (and, therefore, the attorney’s
contingent risk) is the product of two factors: (1) the legal and
factual merits of the claim, and (2) the difficulty of establishing
those merits. The second factor . . . is ordinarily reflected in the
lodestar—either in the higher number of hours expended to over-
come the difficulty, or in the higher hourly rate of the attorney
skilled and experienced enough to do so. . . .
The first factor . . . should play no part in the calculation of the
[attorney’s fees] award.
Id. at 562-63 (citing Blum v. Stenson, 465 U.S. 886, 898-99 (1984)); see
also Helton v. Dir., OWCP, 6 B.L.A. 1-176 (1983) (stating that "risk of
loss is always present and is considered to be incorporated into and is
evaluated as so incorporated in the hourly rate charged by counsel").
WESTMORELAND COAL v. COX 25
award and remand this matter for further proceedings consis-
tent with this opinion.
III.
For the reasons stated above, the BRB’s decision affirming
the ALJ’s orders is
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED.
Therefore, the prevailing hourly rate for Wolfe’s work will presumably
already reflect risk of loss considerations. As such, it would be duplicative
to take into account risk of loss as a separate factor in determining the
final hourly rate to be awarded. See B&G Mining, Inc. v. Dir., OWCP, 522
F.3d 657, 666 (6th Cir. 2008) (holding that, because, "Federal courts and
the BRB have all recognized that compensation for the risk of loss is
already factored into any reasonable hourly rate" it would be "plainly
wrong" for an adjudicator in a black lung case to "consider the risk of loss
in these types of claims when determining a reasonable rate"); see also
Peabody Coal Co. v. McCandless, 255 F.3d 465, 470 (7th Cir. 2001)
(finding that, under Dague, "the rate chargeable against the mine operator
must be market-based, . . . without a premium for the contingent nature
of the compensation") (internal citation omitted).
That is not to say, however, that the ALJ might not adjust the prevailing
rate to account for other non-duplicative factors. See Arbor Hill Con-
cerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182,
183-84 (2d Cir. 2008) ("While the district court should generally use the
prevailing hourly rate in the district where it sits . . . the district court may
adjust this base hourly rate to account for . . . case-specific variables.").