If you have been diagnosed with HIV or AIDS and are unable to work because of your health you need to be aware of how the Social Security Administration will evaluate a claim for disability.
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Types of Social Security Disability Benefits
The first step to attaining Social Security Benefits for HIV is to apply for it online or at your local SSA office. Before you begin the application process, it will help to know the two types of benefits that are generally available: SSDI benefits and SSI benefits.
Social Security Disability Insurance (SSDI)
SSDI (Social Security Disability Insurance) is based on the credits (Social Security taxes) from the work you have done in your life. You must be found disabled before your date last insured (DLI) to be found eligible for SSDI. Your DLI is calculated by counting your “quarters of coverage” from your earnings record. You must have 20 “quarters of coverage” of the last 40 quarters. Simply put, you must have worked 5 years of the last ten years (in general). In addition, Adult Disabled Children can be eligible for benefits off their parent’s account.
Supplemental Security Income (SSI)
SSI (Supplemental Security Income) is a need-based program and you must meet income/asset standards in addition to being found disabled under the five steps above. In 2024, SSI is $943 a month for an individual and $1,415.00 for an eligible couple. SSI will be reduced by 1/3 if you are receiving financial help from others. In NC, SSI recipients are also entitled to Medicaid.
What is HIV and AIDS?
We are telling our age, but remember the pure horror and shock when HIV and AIDS were first diagnosed in the 1980s (HIV Timeline). According to WebMD, it is estimated that since 1981, 32 million people have died because of AIDS-related illnesses and an estimated 1.1 million Americans are among the nearly 37 million people worldwide who are now living with HIV, the virus that causes AIDS.
The human immunodeficiency virus (HIV) is a virus that attacks the immune system by entering and destroying healthy white blood cells. Without enough health white blood cells the immune system is unable to fight off diseases and even simple germs (via NY.Gov).
Acquired Immunodeficiency Syndrome is the most advanced stage of the disease (AIDS). HIV is spread through the exchange of bodily fluid: blood, breast milk, semen and vaginal secretions (Via WHO & CDC).
There are four stages to HIV/AIDS (via Mayo Clinic):
- Primary Infection (Acute HIV)- after initial infection, some people have a flu-like illness within 2-4 weeks of being exposed while other people do not. Fever, headache, muscle ache, rash, sore throat/mouth sores, diarrhea, weight loss, cough and night sweats are all possible symptoms.
- Clinical Latent Infection (Chronic HIV) - Many people do not have symptoms at this stage but the virus is working in their body if they are not on treatment.
- Symptomatic HIV Infection - The virus has built up in your cells to a level where you start to have symptoms: fever, fatigue, swollen lymph glands, diarrhea, weight loss, thrush, shingles, or pneumonia.
- Progression to AIDS - If left untreated HIV can turn into AIDS in roughly 8-10 years. Luckily, with treatment, most people in the U.S. don't contract AIDS.
Antiretroviral Therapy (ART) is a combination of HIV medicines that reduces the amount of HIV virus in the body (viral load). By reducing the HIV viral load, the body is given a chance to produce more CD4 cells.
With more CD4 cells, the immune system can fight off opportunistic infections. Also rendering the viral load undetectable reduces the risk of HIV transmission.
Thankfully, with the right medical treatment and monitoring, many people are able to control the virus. But these medications do cause side effects. In some cases, the side effects from the medication alone can be disabling.
AIDS, HIV and Disability Benefits
It should be noted that HIV or AIDS patients are considered and protected by the Americans with Disability Act (ADA) (via HHS). The ADA prohibits discrimination in employment and requires that an employer provide reasonable accommodations to a worker with HIV or AIDS, to name two.
However, simply because the ADA defines HIV/AIDS as a disability, that does not mean that the Social Security Administration will as well. As you will see, Social Security uses their own rules for determining disability.
Is HIV a disability to Social Security? Is AIDS a disability? The answer to these questions depends on the severity of your symptoms. As with most diseases and Social Security, the name of your impairment is not as important as how your symptoms affect your daily life activities and ability to work.
Medical records are an essential part of attaining Social Security Disability. Without medical treatment, you will be unable to prove your disability.
Social Security used a Five Step Sequential Evaluation to determine if you are disabled at every step of the disability process (Initial, Reconsideration, Hearing, and the Appeals Council):
- Step 1 – Are You Working? The Social Security Administration defines work as “Substantial Gainful Activity” (SGA). SGA is roughly defined as work from earnings that average more than $1,550 (2024) a month. If you are making that amount you generally will not qualify for disability.
- Step 2 – Is Your Condition “Severe”? Severity is key when it comes to what qualifies as a disability. Severe is defined by the Social Security Administration as: your condition must interfere with basic work-related activities for your claim to be considered.
- Step 3 – Is Your Condition on the List of Disabling Conditions? The Listings are very hard to meet in most cases and not always interpreted as a common reading would suggest. If you meet a listing you are gravely ill. The listings are found here.
- Step 4 – Can You Do the Work You Did Previously? The Social Security Administration will look at your past employment and determine if it was sedentary, light, medium, or heavy. They also will evaluate the skill level: unskilled, semi-skilled and skilled. For instance, an attorney would be sedentary skilled work. The Dictionary of Occupational Titles is found here.
- Step 5 – Can You Do Any Other Type of Work? If the Social Security Administration finds that you cannot do what you used to do, they then look to see if you can do anything else. This is where the “grids” come into play. The grids are the Medical-Vocational Guidelines. The grids are only for exertional impairments. Non-exertional impairments are not considered by the grids. If you are found to be capable of any other work, you will be found not disabled. Read The Grids and Your Social Security Disability Case.
At Step 3, the Social Security Administration can evaluate HIV/AIDS under 14.11, HIV Infection. The listing mainly focuses on various cancers/infections/complications that can arise from having HIV. The CD4 count levels required to meet this listing are very low (50 cells/mm^3) or require a CD4 count that is commensurate with a AIDS diagnosis and require other severe symptoms (below 200 cells//mm^3).
Most listings are difficult to meet and 14.11 is no exception.
If you do not meet a Listing at Step 3, Social Security will assign you a residual functional capacity (RFC). An RFC is essentially the most that you can do despite your impairments.
They will use this RFC to determine if you can be found disabled under the Medical Vocational Guidelines (The Grids). If you are over 50 years old (generally) and limited to sedentary work The Grids can help. Everyone else will find little help here.
Lastly, SSA can use the combination of your impairments to determine that you are disabled and unable to engage in substantial gainful activity (SGA) due to all your symptoms combined.
Also see Social Security Disability Conditions
If you think you may have been exposed to the HIV virus, you must get tested. Your local health department can administer the test. If you are HIV positive, the first step is to see a doctor that specializes in HIV care. The doctor will start you on antiviral medication that can help control your HIV disease and prevent it from turning into AIDS.
If you are taking your medications but are still unable to work due to symptoms from your HIV, AIDS or from side effects from your medication, you should file a claim for Social Security Disability as soon as possible.
Do you need a Social Security Disability Lawyer?
The Bishop Law Firm represents Social Security Disability clients in Raleigh, Durham, Fayetteville, Cary, Rocky Mount, Wilson, Smithfield, Louisburg, Chapel Hill, Roanoke Rapids , Winston Salem, Garner, Greensboro, Greenville and surrounding areas in North Carolina. Call us today for a free case review, (919) 615-3095.
