Can I Get Social Security Disability for HIV-AIDS?
Claims based on HIV-AIDS need to be symptomatic and supported with strong medical evidence
The Human Immunodeficiency Virus (HIV) is a virus that weakens your immune system by destroying cells that prevent diseases and infections. HIV also can lead to Acquired Immunodeficiency Syndrome (AIDS), which is an immunological disorder that allows opportunistic infections to attack organs. HIV is similar to other viruses, such as the flu or common cold. However, the human immune system cannot get rid of the HIV virus so it remains with you for life. Symptom management is of primary importance. If you do not obtain proper treatment, HIV will eventually overwhelm your immune system. Many people with HIV experience severe flu symptoms which include fever, sore throat, rashes, muscle and joint pains, and fatigue. People diagnosed with AIDS can develop chronic cancer, ulcers, intestinal problems, Tuberculosis, etc.
Does Social Security consider HIV-AIDS to be disabling?
The short answer is, “It depends.” And it depends on many factors, most notably the severity of your symptoms, the effectiveness of treatment options, the strength of your medical evidence, your age, your education level and the type of work you have done. HIV-AIDS disability claims are complex and require present medical evidence with very specific findings. So, HIV and AIDS cases often come down to the strength of medical evidence found primarily in lab results that reasonably support the alleged limitations.
How exactly does Social Security evaluate a disability claim based on HIV-AIDS?
Social Security employs a 5-step sequential evaluation process to determine if you qualify for disability benefits under the SSDI and/or SSI programs. At each phase of a disability claim, there is an adjudicator, or decision-maker. At the Initial Application and Reconsideration phases, the decision-maker is a Disability Determination Service (DDS) Examiner in consultation with a DDS Physician. At the Hearing phase, the decision-maker is the Administrative Law Judge who often consults with a Medical Expert (ME). The following evaluation is employed by the adjudicator at each phase.
Step 1: Non-Medical Criteria. First and foremost, you cannot be working above what Social Security calls a Substantial, Gainful Activity (SGA) level. Basically, you cannot be earning more than $1,090 on a gross (pre-tax) monthly basis. The SGA rule is the most important non-medical criteria, but there are other non-medical criteria that also must be satisfied in order for the claim to progress to a complete medical review at Step 2. No matter how severe and debilitating your HIV-AIDS might be (even if it is well-supported by years of medical evidence), if you do not meet the non-medical eligibility requirements, your claim will not advance to Step 2 and your claim will be technically denied. You can appeal a technical denial, but generally speaking if the facts are correct, the appeal will be unsuccessful.
Step 2: Severe Impairment. The question at Step 2 is whether or not your symptoms are severe. To determine whether your impairments are severe, all medical evidence is assembled. If you have an Attorney or Non-Attorney Representative, they should be heavily involved in this process. The adjudicator can also request that you complete Activities of Daily Living and Vocational Questionnaires, which provide an opportunity for you to communicate how your symptoms have impacted your ability to function normally. The adjudicator may also schedule a Consultative Examination (CE) with a doctor who is contracted by DDS to perform medical evaluations on their behalf. Once all evidence has been assembled, the adjudicator reviews the information and decides whether or not your symptoms are severe. To be considered severe, the symptoms must limit your ability to perform basic work-like activities. Severity can take many forms, including physical limitations, such as limited ability to walk, stand, lift, push, carry things, etc. Severity can also encompass the inability to speak, hear, see, concentrate, follow basic instructions, get along with co-workers, etc. If your symptoms are determined to be severe, your claim progresses to Step 3, otherwise it is denied at Step 2 and you have the opportunity to appeal.
Step 3: Medical Listings. At Step 3, the question is whether your HIV-AIDS meets or equals a medical “Listing.” Social Security has broken down the human body and mind into 14 different Impairment categories, called the Listing of Impairments. HIV-AIDS claims are typically evaluated under Listing 14.08 Human Immunodeficiency Virus (HIV) Infection. Disability under Listing 14.08 is among the most complex evaluations performed by Social Security examiners. Disability under Listing 14.08 requires at least one of the following: bacterial infections such as mycobacterial infection at a site other than the lungs, skin, cervical or hilar lymph nodes, or pulmonary tuberculosis resistant to treatment; or nocardiosis; or salmonella bacteremia, recurrent non-typhoid; or multiple or recurrent bacterial infections, including pelvic inflammatory disease, requiring hospitalization or intravenous antibiotic treatment three or more times in a 12-month period. Fungal infections such as aspergillosis; or candidiasis involving the esophagus, trachea, bronchi, or lungs, or at a site other than the skin, urinary tract, intestinal tract, or oral or vulvovaginal mucous membranes; or coccidioidomycosis, at a site other than the lungs or lymph nodes; or cryptococcosis, at a site other than the lungs; or histoplasmosis, at a site other than the lungs or lymph nodes; or mucormycosis; or pneumocystis pneumonia or extrapulmonary pneumocystisinfection. Protozoan or helminthic infections such as cryptosporidiosis, isosporiasis, or microsporidiosis, with diarrhea lasting for one month or longer; or strongyloidiasis, extra-intestinal; or toxoplasmosis of an organ other than the liver, spleen, or lymph nodes. Viral infections such as cytomegalovirus disease at a site other than the liver, spleen, or lymph nodes; or herpes simplex virus causing: mucocutaneous infection lasting for one month or longer; or infection at a site other than the skin or mucous membranes or disseminated infection; or herpes zoster: disseminated; or with multidermatomal eruptions that are resistant to treatment; or progressive multifocal leukoencephalopathy. Malignant neoplasms: carcinoma of the cervix, invasive, FIGO stage II and beyond; or Kaposi’s sarcoma with: extensive oral lesions; or involvement of the gastrointestinal tract, lungs, or other visceral organs; or lymphoma; or squamous cell carcinoma of the anal canal or anal margin. Conditions of the skin or mucous membranes, with extensive fungating or ulcerating lesions not responding to treatment or HIV encephalopathy, characterized by cognitive or motor dysfunction that limits function and progresses; or HIV wasting syndrome, characterized by involuntary weight loss of 10 percent or more of baseline or other significant involuntary weight loss. In the absence of a concurrent illness that could explain the findings; with either: Chronic diarrhea with two or more loose stools daily lasting for one month or longer; or chronic weakness and documented fever greater than 38°C for the majority of one month or longer; or diarrhea, lasting for one month or longer, resistant to treatment and requiring intravenous hydration, intravenous alimentation, or tube feeding. One or more of the following infections that are either resistant to treatment or require hospitalization or intravenous treatment three of more times in a 12-month period: sepsis; or meningitis; or pneumonia; or septic arthritis; or endocarditis; or sinusitis documented by appropriate medically acceptable imaging. Repeated manifestations of HIV infection, or other manifestations resulting in significant, documented symptoms or signs and one of the following at the marked level: limitation of activities of daily living, limitation in maintaining social functioning, and limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.
If the adjudicator reviews your medical records and determines you meet a medical listing, you are found to be Disabled at Step 3 and you are eligible to receive disability benefits. If, however, you do not meet a medical listing, the claim proceeds to Step 4.
Step 4: Past Work. The objective of Step 4 is to determine whether you have the ability to perform work you have performed previously. To determine this, the adjudicator determines your Residual Functional Capacity (RFC). Your RFC identifies what your body and mind can still do after considering your medical symptoms. In developing your RFC, the adjudicator will consider all impairments and symptoms, including mental and physical. The adjudicator will estimate your ability to perform such functions as sitting, standing, walking, lifting, carrying, pushing, pulling, reaching, handling, stooping, crouching, remembering, understanding, etc. Your RFC might contain some of the following limitations: inability to stand and walk for greater than 4 hours total out of an 8 hour workday, inability to sit for longer than 2 hours, inability to lift and carry more than 10 pounds, inability to climb ropes or ladders, inability to maintain concentration, persistence or pace, etc.
Once the adjudicator has developed your RFC, they will then list your Past Relevant Work (PRW), which is any job you performed during the 15 year period immediately preceding the Alleged Onset Date (AOD) of your disability. In general, if there is a job that you performed within 15 years of your AOD in which you worked close to full-time for a period of at least a few months, that job will likely be considered Past Relevant Work.
After finalizing your list of Past Relevant Work, the adjudicator must now classify it. The type of work you have done in the past will be classified by both exertional level and by skill level. For example, a Nurse works at the Medium exertional level and the position is considered Skilled, while a Security Guard works at the Light exertional level and the position is considered Semi-Skilled. Once all of your PRW has been classified, the adjudicator must then determine whether you have the functional ability to perform any of your past work. For example, if the Security Guard’s impairments prevent him or her from being able to stand and walk as is required for jobs at the Light exertional level, he or she would be unable to perform Security Guard work due to the limitations found in the RFC and the claim would advance to Step 5. If, on the other hand, the adjudicator determines you can still perform the functions required in you past work, you will be found Not Disabled and denied. You would then have the opportunity to appeal this denial.
Step 5: Other Work. Step 5 considers whether you can perform any other type of work, even if you have not performed it in the past. The adjudicator utilizes the same Residual Functional Capacity (RFC) developed in Step 4, and also considers your Age, Education, and Work Experience.
To start, Social Security classifies your Education level as follows:
• Illiterate (or unable to communicate in English)
• Marginal (generally 6th grade or less)
• Limited (generally 7th through 11th grades)
• High school (and above)
The Education level is important as it affects the skill level of different jobs that you might be able to perform. For example, if you have a Marginal education, then you would be limited to performing Unskilled jobs, but if you have a High school education then you would be expected to be able to perform both Semi-Skilled and Skilled jobs.
The adjudicator will then consider the next factor, Work Experience. Work Experience means any skills and abilities that you acquired from your past work. The fact that you are now at Step 5 means that the adjudicator determined at Step 4 that you can no longer perform your past work. However, the adjudicator will consider whether any of the skills and abilities you learned from your past work would transfer to a different job. For example, a Nurse who performed her job at the Medium exertional level and who can no longer perform her past work might have acquired skills which would transfer to a position as a Medical Assistant, a job which she could perform at the Light exertional level.
Finally, the adjudicator will consider the last factor, Age. Social Security evaluates adults in several Age categories:
• Younger (ages 18-49)
• Closely approaching advanced age (ages 50-54)
• Advanced age (ages 55-59)
• Closely approaching retirement age (ages 60+)
While Younger individuals have the burden of proving they are unable to perform any type of work, the burden is lessened in the more advanced age categories. Social Security refers to this premise as the Medical-Vocational Guidelines, or the “Grid Rules” because the key factors are laid out in a grid with the final column being a determination of either Disabled or Not Disabled. Basically, the older, less educated and the fewer transferable skills you acquired in your past work, the more likely you are to be found Disabled.
If the adjudicator determines you can perform some other type of work, based on your age, education, and prior work experience, you would be found Not Disabled and denied. You would have the opportunity to appeal this denial. If, however, the adjudicator determines you cannot perform any other type of work, you would be found Disabled and approved for disability benefits at Step 5.
Conclusion: Will my disability claim be approved?
Social Security disability claims based on HIV-AIDS must be supported with a number of conditions and limitations. These claims require expert understanding of the above evaluation process, as well as compelling medical evidence. If the medical evidence does not support the alleged severity, the claimant is often found to be less than credible and denied. If you would like to discuss the specifics of your case with a disability expert now, please contact us. We will do everything possible to get your claim approved.
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