Social Security disability benefits are available for people who are HIV-positive and have symptoms of acquired immune deficiency disease (AIDs) that limit their ability to work. People who are HIV positive but have no significant symptoms won't be considered disabled by the Social Security Administration (SSA) since they don't have a medical problem that is impairing their ability to work. Some HIV positive people can remain symptom-free for years; in these cases, the SSA will not approve disability benefits until an HIV infection has progressed far enough to cause serious symptoms, discussed below.
The human immunodeficiency virus (HIV) is a retrovirus that damages the immune system by destroying T-helper lymphocytes (CD4s, white blood cells that fight disease). After an HIV infection destroys enough lymphocytes, the infected person can develop what are known as opportunistic infections -- illnesses and cancers that take advantage of a person's weakened immune system. It is the symptoms and impairments caused by these opportunistic illnesses, not the HIV virus itself, that render someone with HIV/AIDs unable to work. Women infected with HIV are particularly susceptible to certain opportunistic diseases, such as vulvovaginal candidiasis and pelvic inflammatory disease.
A claimant (someone who applies for disability benefits) who has a documented case of AIDs is likely to be approved for disability benefits, because once the HIV infection has progressed to AIDs, it's likely that the person has problems that will prevent him or her from working (called functional limitations). But there are situations where a person infected with HIV without an AIDS diagnosis will be allowed disability benefits if his or her condition is severe enough. This is because the SSA looks at the patient's condition and functional limitations, not whether AIDS has been diagnosed, to determine whether disability benefits should be granted.
Any HIV-positive person will be found automatically disabled under the SSA's HIV listing in its "blue book" listing of impairments if his or her condition meets the criteria in the official listing (in this case, the patient doesn't need to prove he or she has functional limitations). Here is what's required.
First, the SSA requires a documented, positive HIV test (see below for evidence required). Next, a claimant needs evidence of an opportunistic disease or cancer. Opportunistic infections that often lead to functional limitations for HIV-positive people (and an AIDs diagnosis) include:
The above opportunistic infections and cancers are listed in the SSA's blue book, along with a few other instances of infections (for example, under fungal infections, aspergillosis and mucormycosis are also listed). The blue book contains specifications for some of the impairments; that is, how severe the infection must be before it will automatically qualify for disability. For instance, for cervical cancer to qualify, the cancer must be "invasive, FIGO stage II and beyond.” To read the full impairment listing for HIV infection, see the SSA’s listings on Immune System Disorders, HIV infection. If the patient has a condition that can be considered equal to an official impairment in severity, that person can also be found disabled.
In addition to the above official listings, the SSA blue book says that if a person does not match an exact listing of an infection or cancer, but has repeated symptoms of HIV infection, such as oral hairy leukoplakia, myositis, pancreatitis, hepatitis, peripheral neuropathy, glucose intolerance, or muscle weakness, the person may be considered disabled if he or she has significant symptoms like severe fatigue, fever, malaise, involuntary weight loss, pain, night sweats, nausea, vomiting, headaches, or insomnia suffers a marked limitation in one of the following:
If a person doesn't qualify under the above catch-all listing, the SSA can rate a borderline patient's residual functional capacity, or RFC, to see if the patient can qualify for disability under a "medical-vocational allowance." The patient's RFC will state whether a person is deemed capable of sedentary work, light work, or medium work. For instance, if a patient cannot stand or walk for six to eight hours per day, the RFC would be sedentary work. Depending on a person's age, experience, and educational level, the SSA will determine whether it thinks the person can find a job that matches their RFC. An older person without skills or higher education who has a sedentary RFC is likely to be found disabled.
In considering a medical-vocational allowance, the SSA must consider all medical evidence (see below), including impairments caused by treatment side effects and other, unrelated impairments the claimant may have. For example, individuals with HIV infection may have symptoms of anxiety or depression.
A claimant needs to show a diagnosis of HIV infection, documented by certain laboratory tests that are considered medically definitive. The SSA impairment listings for HIV infection list the various ways that HIV infection is allowed to be documented.
A claimant must usually also prove he or she has an opportunistic infection, disease, or cancer, documented by the presence of symptoms or, if available, medically acceptable laboratory tests.
Individuals who have HIV infection often have their T-helper lymphocyte (CD4) blood counts taken, because an HIV infection destroys CD4 cells and a low CD4 count can show susceptibility to opportunistic diseases, but a low CD4 count alone does not establish the presence, severity, or functional limitations of an HIV infection.
If a claimant's condition does not match one of the illnesses or cancers listed by the SSA in its blue book, to provide evidence for a medical-vocational allowance, the claimant should include a record of symptoms in a symptom diary, including pain, fatigue, nausea, night sweats, headaches or insomnia, and how these symptoms interfere with daily activities outside of work and how they prevent the claimant from working or keeping a job.
In addition, the treating physician’s notes should record the patient’s symptoms, decline in function, and the side effects of medication. The antiretroviral drugs used to treat HIV and AIDS can have debilitating side effects that add to a claimant's impairment. Common side-effects are vomiting, headache, insomnia, and fatigue, but also include anemia, diarrhea, fever, pancreatitits, peripheral neuropathy (nerve damage), and muscle weakness.
Many denials of disability benefits are due to insufficient medical documentation. Talk with the claimant’s physician to make sure he or she is making proper notations to adequately reflect the claimant’s functional limitations.
The claimant can call the SSA at 800-772-1213 to set up an appointment to submit a disability application through his or her local SSA office. Once the claimant has submitted all necessary medical and financial information to the SSA, a claims examiner and medical consultant will consider the claim and make a decision as to the claimant’s entitlement to SSDI or SSI disability benefits.
If you are applying for SSI and have an HIV infection with some severe symptoms, you may qualify for "presumptive disability benefits," which means you would get immediate payments of disability payments while you wait for a final decision on your disability benefits. Find out more in Nolo's article on presumptive disability.
Many people who apply for disability based on HIV infection alone (without evidence of a listed opportunistic disease or AIDs) are initially denied benefits, but some of these cases can be won on appeal. Claimants are allowed to file a request for reconsideration by themselves, but hiring a lawyer at this point will help their chances of getting disability benefits on appeal.