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.
An HIV-positive claimant will be found automatically disabled under the SSA's HIV disability listing if his or her condition meets the criteria (in all but one case, the patient doesn't need to prove he or she has functional limitations). The SSA updated its HIV listing substantially in 2017, and it's now listed under section 14.11, not 14.08. Here is 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 a claimant doesn't have one of the above blood tests, he or she may be able to prove an HIV infection if he or she has an opportunistic disease or cancer that commonly appears in HIV-positive people.
After showing documentation of an HIV infection, a claimant needs evidence that he or she has one of the listed opportunistic infections, diseases, or cancers that often affect HIV-positive people (and lead to an AIDS diagnosis). In its new listing published in 2017, the SSA made the list much shorter; the only listed conditions are now:
In addition to the above conditions, the listing says that if a claimant doesn't have one of the above infections, diseases, or cancers, but has symptoms of repeated HIV infections or complications plus certain severe functional limitations, he or she may qualify for disability under the listing. Social Security gives examples of complications that could qualify such as oral hairy leukoplakia, myositis, pancreatitis, hepatitis, peripheral neuropathy, glucose intolerance, muscle weakness, bacterial, fungal, parasitic, or viral infections, diarrhea, and heart muscle infections. 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 the claimant to suffer a severe limitation in one of the following:
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 the patient has a condition that can be considered equal to an official impairment in severity, that person can also be found disabled.
The old listing (which applies to applications in 2016 and earlier) listed more infections that could qualify a claimant for disability automatically:
If a claimant doesn't qualify under the above listing, the SSA can rate a borderline claimant's residual functional capacity, or RFC, to see if the claimant can qualify for disability under a "medical-vocational allowance." The claimant's RFC will state whether he or she is deemed capable of sedentary work, light work, or medium work. For instance, if a claimant cannot stand or walk for six to eight hours per day, the RFC would be for sedentary work. Depending on a claimant's age, experience, and educational level, the SSA will determine whether it thinks the claimant 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.
To provide evidence for a medical-vocational allowance, the claimant should include a record of symptoms in a 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 claimant's doctor should record the claimant'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, 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 the claimant may have. For example, individuals with HIV infection may have symptoms of anxiety or depression.
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 an appeal by themselves, but hiring a lawyer at this point will help their chances of getting disability benefits at the appeal hearing.