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Curt Kellinger v. Commissioner of Social Security

July 26, 2011


The opinion of the court was delivered by: Wigenton, District Judge,



Before the Court is Plaintiff Curt Kellinger‟s appeal of the final administrative decision of the Commissioner of the Social Security Administration ("Commissioner"), with respect to Administrative Law Judge Dennis O‟Leary‟s ("ALJ") denial of Kellinger‟s claim for disability insurance benefits ("DIB") under Sections 216(i) and 223(d) of the Social Security Act (the "Act").

This appeal is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. The Court has subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). Venue is proper under 28 U.S.C. § 1391(b). For the reasons stated herein, this Court AFFIRMS the Commissioner‟s decision.


On August 8, 2007, Kellinger applied for DIB, alleging disability due to post-traumatic stress disorder ("PTSD"), anxiety, depression, and hypertension. (ALJ‟s Decision at 1.) His claims were denied on March 19, 2008, and again upon reconsideration on June 25, 2008. (Id.) Kellinger requested a hearing that was held on October 30, 2009, before the ALJ, who issued a ruling against Kellinger on January 20, 2010. (Id. at 1, 12.) Subsequently, the Appeals Council denied Kellinger‟s request for review. (Compl. ¶¶ 8-9, Oct. 7, 2010.) Thereafter, Kellinger filed this appeal with the Court. (Id. at 1.)

A. Employment History

Kellinger was born on March 27, 1959. (Ex. 3E at 1.) He has a high school education and attended the Police Academy and the Emergency Service Academy. (Tr. 6.) From February 20, 1986, to November 11, 2005, Kellinger worked as a police officer for the Port Authority of New York & New Jersey. (Ex. 12E at 1.) He first worked street patrol before becoming an emergency service officer. (Tr. 6.)

In his capacity as an emergency service officer, Kellinger responded to the events of September 11, 2001, at the World Trade Center. (Tr. 12; Ex. 2F at 12.) Upon arriving at the scene, Kellinger witnessed numerous people leap from the burning towers and plummet to their deaths. (Ex. 2F at 12.) One of the most troubling scenes Kellinger witnessed that day occurred when a fireman was struck and killed by a falling body. (Id.) Tragically, Kellinger‟s partner was killed and his best friend was never found. (Tr. 12.) Kellinger reports losing at least twenty friends on that day and attending thirty-seven funerals. (Ex. 2F at 12; Ex. 3F at 132.)

As a result of these events, Kellinger began to develop mental health issues, but continued to work until November 11, 2005, when he was declared unfit for duty and placed on medically restricted leave. (ALJ‟s Decision at 7; Tr. 12.) While on medically restricted leave-between November 11, 2005, and May 15, 2008-Kellinger collected full pay, but was not required to report to work. (ALJ‟s Decision at 3.) Kellinger officially retired on May 15, 2008, when the period for receiving pay for medically restricted leave expired. (ALJ‟s Decision at 7; Tr. 15.) Kellinger had been previously placed on medically restricted leave a few times, the most notable of which occurred after a seven hour hostage standoff in 1989. (Tr. 7.)

B. Medical History

Kellinger claims he became disabled on November 11, 2005, due to PTSD, anxiety, depression, and hypertension arising from the events of September 11, 2001. (ALJ‟s Decision at 1; Ex. 4E at 1-2.) At his hearing, Kellinger alleged constant anxiety attacks; severe sleep problems; tension; constant agitation; inability to concentrate or socialize; depression; memory problems; and habitual chewing of his own jaw, neck, and chest. (Tr. 7-10.) In his DIB application, he claimed disability due to PTSD, depression, high blood pressure, and anxiety. (Ex. 4E at 1.)

Work and marital issues further exacerbated Kellinger‟s symptoms. (Ex. 3F at 144, 148.) Specifically, Kellinger expressed frustration with not receiving a promotion or Medal of Honor for his service on September 11, 2001, and his marital problems, which began thereafter and eventually, caused him and his wife to separate in 2007. (Id.; Ex. 4F at 3.)

Kellinger is taking several medications for his numerous medical problems.

He is taking Ambien, Lunesta, Seroquel, and Triazapine for sleep. (Tr. 9; Ex. 4E at 6.) He takes Lipitor for high cholesterol; Paxil for depression; Xanax for anxiety; and Prozac. (Ex. 4E at 6.) As a side effect of these medications, he reports feeling drowsy and "in a constant state of headache." (Tr. 11.)

Kellinger has seen several physicians for his mental health issues. The first was Dr. Francis, the Port Authority‟s psychiatrist, who directed him not to report to work immediately after September 11, 2001. (Tr. 13). As of the date of his ALJ hearing, Kellinger was seeing two mental health professionals regularly: Ms. Susan Kunkel, LCSW and Dr. Louis Arroyo. (Tr. 10.) Ms. Kunkel had been counseling Kellinger since 2001 and Dr. Arroyo had been his psychiatrist since 2004. (Id.) Kellinger sees Ms. Kunkel once a week and sees Dr. Arroyo usually about once a month, but sometimes twice a month. (Id.)

Ms. Kunkel, in a June 13, 2008 report, stated that Kellinger was suffering from major depression, severe anxiety, and allof the symptoms of "severe" PTSD. (Ex. 9F at 4.) She noted that he suffers from flashbacks related to PTSD, has a poor memory, and has difficulty concentrating. (Id.) In a visit on June 11, 2008, she noted that he appeared disheveled and unshaven, and was not oriented to the date or day. (Id.) She noted that his intellect was "average to above average" and his judgment was "okay." (Id.)

In a September 13, 2008 report, Ms. Kunkel stated that Kellinger has major depression, generalized anxiety disorder, and PTSD, with symptoms including: poor concentration; anxiety with panic and chest pain; fatigue from depression; difficulty focusing; and an easily triggered temper. (Ex. 15F at 3-6.) In an October 19, 2009 report, Ms. Kunkel stated that Kellinger has chronic PTSD, major depression, and generalized anxiety disorder with a GAF of 50 at onset and a GAF of 50-51 at present.*fn1

(Ex. 17F at 4-5.) She did, however, describe Kellinger‟s prognosis as good if he avoids moderate to ...

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