Social Security and HIV/AIDS
By: Pitt Dickey - Attorney
Preface: Since Social Security Disability is directed under Federal law, the information in this column will apply anywhere in the United States. However each Office of Hearings and Appeals and District Office have their own ways of doing things as does the various Federal District and Circuit Courts. I have kept this column primarily dealing the the mechanics of how the Social Security District Offices and Office of Hearings and Appeals evaluates disability claims.
- Pitt Dickey
This column will examine how the Social Security Administration evaluates Disability Insurance Claims for people who are diagnosed with Human Immunodeficiency Virus infection (HIV).
The Social Security Administration (SSA) has a set of criteria that it uses called Listings to determine whether a person is eligible for monthly disability insurance payments. To obtain disability insurance benefit payments from the SSA a person must in general have a health problem that can be expected to last at least one year or to result in death and be unable to perform any type of substantial gainful employment.
To see how the SSA reviews claims that involve persons who have HIV, it is helpful to take a brief look at a very general outline of HIV. The SSA defines the HIV infection is being caused by a retrovirus which can be characterized by susceptibility to one or more opportunistic diseases, cancers or specific conditions described in the Listings used to evaluate disability claims based on HIV.
HIV results in a suppression of the body’s normal immune response to infections or disease. The body produces blood cells called lymphocytes that have a normal role of helping the body’s immune system resist disease.
HIV weakens this immune defense system that results in a person becoming more likely to have opportunistic infections from bacteria and parasites that would be fought off in most cases by a person without HIV. In addition to being more likely to have opportunistic infections, a person with HIV is more likely to become ill with certain types of cancers.
To receive SSA Disability Insurance Benefits a person must meet the following tests. In the interest of space it is not possible to list all of the standards but these ones below are representative of the listings.
The person must have a definitive diagnosis that he has HIV that is documented by a laboratory test such as a serum specimen with HIV antibodies or a specimen containing HIV antigens. In addition to the diagnosis of HIV the patient must have at least one of the following conditions:
A. Bacterial infections such as mycobacterial infection (a bacterial disease with symptoms such as night sweats, fever, weight loss, weakness), salmonella, syphilis, and other bacterial diseases. The patient must have recurrent bacterial infections which have required hospitalization or intravenous antibiotic treatment 3 or more times in 1 year.
B. Fungal infections such as aspergillosis, histoplasmosis at a site other than lungs or lymph nodes, or cryptococcosis at a site other than the lungs.
C. Protozoan (parasitic) or helminthic (from worms) infections which result in diarrhea lasting for more than 1 month, or results in certain pneumonia type diseases, or toxoplasmosis of an organ other than the liver, spleen or lymph nodes.
D. Viral infections including cytomegalovirus disease at a site other than the liver, spleen or lymph nodes; herpes simplex virus which causes infection in the oral, genital or perianal region which lasts at least a month; infection of an internal organ, or hepatitis.
E. Malignant cancers including carcinoma or the cervix, Kaposi’s sarcoma with extensive oral lesions, involvement of the gastrointestinal tract, lungs or skin; lymphoma involving the brain, Hodgkins disease or non-Hodgkins lymphoma.
F. Conditions of the skin or mucous membranes with extensive ulcerating lesions that are not responding to treatment such as eczema or psoriasis.
G. Blood diseases such as anemia (too few red blood cells), granulocytopenia (abnormal increase in white blood cells), or thrombocytopenia (too few clotting blood cells).
H. Neurological abnormalities such as HIV encephalopathy (brain disease related to HIV) characterized by problems with thinking or movement; or peripheral neuropathy (nerve damage) related to HIV.
I. HIV wasting syndrome which is characterized by involuntary weight loss of 10% or more of the body weight in the absence of some other disease which could be the cause of the weight loss and chronic diarrhea for 1 month or longer or chronic weakness and fever in excess of 100.4 degrees for the majority of a month
K. Cardiomyopathy (heart disease), Nephropathy (kidney disease),
L. One or more infections of the following which are resistant to treatment or required hospitalization or intravenous treatment 3 or more times in 1 year; sepsis, meningitis, pneumonia, septic arthritis, endocarditis (infection of the heart), or sinusitis.
It should be kept in mind that a person can still be found to be disabled by an Administrative Law Judge even if he does not meet a particular listing if he has health problems that in combination are the equivalent of a listing.
The Judge has the discretion to decide if a person’s health problems are serious enough to warrant an award of disability benefits despite not meeting the specific technical requirements of one of the SSA listings for disability.
Pitt Dickey has practiced law in Fayetteville since 1978. He has handled SSA disability claims for over twenty years. He practices with the firm of Smith, Dickey, Smith, Hasty & Dempster, P.A. at 555 Executive Place and can be reached at 910-485-8020 or at . Or at the firm web site of www.smithdickey.com .
Copyright © 2002 Pitt Dickey - Used with permission
