Social Security disability benefits are available for people who have acquired immune deficiency syndrome (AIDS) or are HIV-positive and have symptoms that limit their ability to work. Some HIV-positive people can remain free of significant symptoms for years; in these cases, Social Security 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 cause someone with HIV/AIDS to be 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 applied 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 Social Security Administration (SSA) looks at the patient's condition and functional limitations, not whether AIDS has been diagnosed, to determine whether disability benefits should be granted.
If you're HIV-positive, you can be found disabled under the SSA's HIV disability listing if your condition meets the criteria of the listing (section 14.11). Here's what's required.
First, a diagnosis of HIV infection must documented by certain laboratory tests that are considered medically definitive. The SSA requires specific documented, positive HIV tests. The listing for HIV infection outlines the various ways that HIV infection is allowed to be documented:
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. However, a low CD4 count alone does not establish an HIV infection.
If you don't have one of the above blood tests, you may be able to prove you have an HIV infection if you have an opportunistic disease or cancer that commonly appears in HIV-positive people.
After showing documentation of an HIV infection, you need evidence that you have one of the listed opportunistic infections, diseases, or cancers that often affect HIV-positive people (and lead to an AIDS diagnosis). The SSA lists the following conditions as opportunistic illnesses:
The HIV listing contains more specifications for some of these conditions; that is, how severe the infection or disease must be before it will automatically qualify for disability. For instance, for pulmonary Kaposi's sarcoma, Social Security requires microscopic findings of biopsied lymph nodes (or other generally acceptable methods). To read the full impairment listing for HIV infection, see the SSA's listings on Immune System Disorders, HIV infection.
If you don't have one of the above conditions, but you have symptoms of repeated HIV infections or complications plus certain severe functional limitations, you may qualify for disability under the listing. Social Security gives examples of complications that could qualify, such as:
The infection or complication must cause significant symptoms like severe fatigue, fever, malaise, involuntary weight loss, pain, night sweats, nausea, vomiting, headaches, or insomnia and must cause you to suffer a severe limitation in one of the following:
If you don't qualify under the above listing, the SSA can rate your residual functional capacity, or RFC, to see if you can qualify for disability under a "medical-vocational allowance." Your RFC will state whether you're capable of sedentary work, light work, or medium work. For instance, if you can't stand or walk for six to eight hours per day, the RFC would be for sedentary work. Depending on your age, experience, and educational level, the SSA will determine whether it thinks you can find a job that matches your RFC. An older person without skills or higher education who has a sedentary RFC is likely to be found disabled.
To provide evidence for a medical-vocational allowance, you should include a record of symptoms in a diary, including pain, fatigue, nausea, night sweats, headaches or insomnia, and how these symptoms interfere with your daily activities outside of work and how they prevent you from working or keeping a job.
In addition, your doctor should record your 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 your impairment. Common side-effects are vomiting, headache, insomnia, and fatigue, but also include anemia, diarrhea, fever, pancreatitis, peripheral neuropathy (nerve damage), and muscle weakness. In considering a medical-vocational allowance, the SSA must consider all medical evidence, including impairments caused by treatment side effects and other, unrelated impairments you may have. For example, individuals with HIV infection may have symptoms of anxiety or depression.
If you're 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. You're allowed to file an appeal by yourself, but hiring a lawyer at this point will help your chances of getting disability benefits at the appeal hearing.
|Take our disability quiz to help you determine whether you qualify for benefits.|
Need a lawyer? Start here.