(Petition for Review)
Before KELLY, ANDERSON, and MATHESON, Circuit Judges.
ORDER AND JUDGMENT [*]
Stephen H. Anderson Circuit Judge
Pro se petitioner Bobby Mann seeks review of the decision of the Benefits Review Board (Board) affirming an administrative law judge's (ALJ) order denying his duplicate claim for benefits under the Black Lung Benefits Act (Act), 30 U.S.C. §§ 901-44. Respondent Turner Brothers, Inc. is the responsible operator. The Board declined to file a brief in this appeal. Mr. Mann has requested leave to proceed in forma pauperis (IFP). We grant the IFP request and affirm the Board's decision.
Mr. Mann first sought benefits under the Act in 1974. The lengthy history of this case has been chronicled by both the ALJ and the Board. Where relevant, the prior proceedings are discussed below. In the proceedings that form the basis of this appeal, an ALJ held a hearing on Mr. Mann's petition for modification of a Department of Labor decision denying his application for benefits. The ALJ evaluated the medical evidence and concluded that while Mr. Mann was afflicted with a pulmonary disease, he had not met his burden of establishing the existence of coal workers' pneumoconiosis. In addition, the ALJ reviewed de novo the entire record and found no mistake of fact in the Department's decision relative to Mr. Mann's claim that he has coal workers' pneumoconiosis. See 20 C.F.R. § 725.310(c) (providing for modification of a decision denying black lung benefits upon either a "change in condition" or "a mistake in a determination of fact"). The Board affirmed the ALJ and denied Mr. Mann's subsequent motion for reconsideration.
This court issued an order directing the parties to address whether Mr. Mann's appeal was timely in order to invoke appellate jurisdiction. The Board's order affirming the ALJ's decision was issued on August 29, 2012, so Mr. Mann's petition for review from that decision was due within 60 days, by October 29, 2012. See 33 U.S.C. § 921(c), as incorporated by 30 U.S.C. § 932(a). The petition was not filed until May 6, 2013.
But as the parties' responses made clear, Mr. Mann had filed a timely motion for reconsideration that the Board denied on March 20, 2013. Therefore, the petition for review, filed within 60 days of the Board's order denying reconsideration, was timely. Moreover, because Mr. Mann's injury allegedly occurred in Oklahoma, this court has jurisdiction to review the Board's decision. See Broyles v. Dir., OWCP, 143 F.3d 1348, 1349 (10th Cir. 1998) (holding "jurisdiction is appropriate only in the circuit where the miner's coal mine employment, and consequently his harmful exposure to coal dust, occurred" (internal quotation marks omitted)).
III. LEGAL STANDARDS
We review the Board's decision for errors of law and "for adherence to the substantial evidence standard governing the Board's review of the administrative law judge's factual determinations. The Board cannot uphold the ALJ's findings and conclusions unless the findings are supported by substantial evidence and the conclusions are in accordance with the law." Wyo. Fuel Co. v. Dir., OWCP, 90 F.3d 1502, 1505 (10th Cir. 1996) (citation and internal quotation marks omitted). We liberally construe Mr. Mann's pro se filings. See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). We do not, however, "take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
"The Black Lung Benefits Act provides for the payment of benefits to coal miners 'who are totally disabled due to pneumoconiosis arising out of employment in one or more of the Nation's coal mines. . . .'" Wyo. Fuel Co., 90 F.3d at 1505 n.1 (quoting 30 U.S.C. § 901(a)). "To obtain benefits under the Act, a miner must demonstrate that he satisfies three conditions: (1) he or she suffers from pneumoconiosis; (2) the pneumoconiosis arose out of coal mining employment; and (3) the pneumoconiosis is totally disabling." Energy W. Mining Co. v. Oliver, 555 F.3d 1211, 1214 (10th Cir. 2009) (citing 20 C.F.R. §§ 718.201-204); accord Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, F.3d, No. 12-9590, 2014 WL 804008, at *1 (10th Cir. Mar. 3, 2014). "The regulations permit a claimant to bring a subsequent [or duplicate] claim after the claimant had been denied benefits in a prior claim. [But] the claimant must first demonstrate as a threshold matter that there has been a material change in conditions since the time of the previous denial." Wyo. Fuel Co., 90 F.3d at 1508 (citation and internal quotation marks omitted).
Mr. Mann contends that he is entitled to benefits based on a decision issued by ALJ Amery in February 1995 finding that he had established the presence of coal workers' pneumoconiosis. ALJ Amery nevertheless denied benefits because Mr. Mann failed to demonstrate that he was totally disabled. Mr. Mann asserts that ALJ Amery's finding of ...