Case Strategy for Disability
Claims Based on HIV/AIDS

Changes in how judges rule on Disability Claims arising from HIV

In recent years, judges who rule on Social Security cases have begun to change their views on claims arising from HIV. Over a decade ago Social Security applicants who had the HIV virus were accepted after the initial application was processed or at reconsideration. If not approved at these first 2 levels, most applicants who went through the hearing process were generally granted disability. This was due to the widespread belief that HIV was a precursor to AIDS and that AIDS would mean that a person would not live long.

In recent years, Judges who rule on Social Security cases do not necessarily view HIV as a precursor to an early death. Many judges treat HIV cases as they would any other chronic disease. These judges have ruled that like diabetes, with the use of proper medication and monitoring, HIV can be prevented from turning in to full-blown AIDS. This means that most HIV patients can remain active members of the work force. Viewing HIV only as a chronic medical condition in my opinion is insensitive to the nature of the virus. Although there have been many breakthroughs in HIV medication and treatments, there are aspects of the disease that may be overlooked by these Judges.

The meds that a person with HIV uses to suppress the virus require continuous adjustment. The variety and amount of drugs that a person with HIV must manage can consume great amount of time – particularly for those with unstable living conditions and who battle depression. HIV medications, more often than not, have very disrupting side effects. People who have the HIV virus can suffer from additional medical problems arising from HIV that require separate treatments. A great many people with the HIV virus suffer from depression and anxiety.

There are a few people with HIV who can work for a short time but others cannot.

My approach to winning HIV cases comes from two tactics. The first is to look at medical “listings” for HIV. For more on the Listing Strategy for HIV/AIDS Claims, please click on the link.  The second is to recognize the functional limitations that occur in people with HIV who are in the workforce.  This second strategy is known as the Functional Capacity Strategy for HIV/AIDS Claims.

How to Win your HIV Claim by meeting a Listing

You will be able to win a Social Security disability case if you can prove that you meet a “listing.” The listings are detailed descriptions of medical conditions published by the Social Security Administration in the Code of Federal Regulations. The listings are divided into 14 separate “systems.” Each system focuses on specific medical conditions and diagnoses.

If your medical condition exists at “listing level”, you qualify automatically for disability benefits. If your condition exists at a listing level, Social Security presumes that your capacity for work would be so limited that you would not be able to work 40 hours a week. The definition of a disability as described by Social Security is a medical condition that impairs a person from being able to be an active member in the work force. If a person’s medical condition meets a “listing” or is at “listing level,” then they qualify for disability benefits.

It is very difficult to meet a “listing” level. This is because Social Security automatically qualifies people for disability benefits if their medical condition meets a “listing.” These cases are sometimes approved at the initial and reconsideration levels. But even cases that are meet “listings” often conclude in an ALJ hearing because of delays during the case evaluation and the complexity of many medical charts.

Meeting the LISTING at 14.08

HIV is listed under the immune system at “Listing 14.08.” Listing 14.08 is abnormally long.  It mentions other medical conditions that are associated with the HIV virus. A comprehensive checklist tracking the “listing” or a descriptive testimony that is generated by a person’s personal physician is needed in order to prove that they meet the requirements for the “listing.”

Due to the progressive nature of the virus, physicians need to recognize when a person with HIV’s condition has deteriorated to the point where it can be considered at “listing” level. It often takes more than two years for a hearing. People often apply when they have not been classified as meeting the “listing”. However, by the time they get a hearing they often fall within the ” listing” classification. During a hearing, people may want to argue for disability benefits based on “listings” AND functional capacity.

The person’s doctor must also be knowledgeable on the medical conditions that are associated and referenced with “Listing 14.08.” If the person’s physician deems that they meet the conditions required by the “listing,” then they will most likely win the case.

Social Security judges are increasingly using medical experts in hearings to determine if people’s medical records meet the requirements for a HIV ” listing.” Most of the medical experts are retired. They often practiced during the eighties when the death rate for HIV was significantly higher than it is today. These medical experts often have a more sympathetic view of HIV – often taking into account the mental problems associated with the medical condition.

Using a functional capacity argument to win your HIV /AIDS case

Lawyers usually use the “residual functional capacity” argument when litigating Social Security Disability cases for HIV/AIDS patients. This argument states that a person cannot compete in the work force for various reasons. The reasons are the original medical condition and several other medical conditions that are a part of the disease. In addition, the side effects of medication such as fatigue, poor concentration or nausea, and depression and anxiety can make it impossible for an HIV patient to become an active member of the work force.

When litigating for Social Security benefits one must prove the inability to work and not just the existence of a medical condition. A doctor must testify that a person’s medical condition prevents a person from participating within the work force. The doctor must testify that the person cannot perform a simple task for a reasonable amount of time in order to win a Social Security disability case.

A few arguments used to litigate Social Security cases are the “listing” arguments, the “grid” argument, and the “RFC” argument.

RFC arguments consist of proving that a person cannot perform the simplest jobs that exist in the work force. “Vocational experts” are often used by judges to testify on a person’s prior work experience and speculate on the person’s ability (or inability) to work based on the persons testimony and supporting medical evidence.

The ultimate goal of litigation in a RFC argument is to identify any labor restrictions. Types of jobs will be removed based on these restrictions if a judge accepts the arguments. If a person cannot lift anything heavy then all jobs that require heavy lifting will be removed.

Functional Capacity Limitations Arising from HIV/AIDS cases

Reliability issues are the most common issues which come up in a HIV/AIDS functional capacity argument. The basic argument is that a person with HIV/AIDS is not a reliable worker due to al the symptoms experienced, side effects of medications, etc.  Diarrhea or constipation often cause people with HIV to frequently have unanticipated bathroom breaks, disrupting the flow of work. People with HIV often suffer from depression that in turn impairs the person’s concentration. Infections related to HIV often result in unintended absences from work.

Testimonial documentation from a doctor that lists these limitations supports the attorney’s argument that the HIV patient is unable to perform any jobs within the existing job market.