Listing 14.08 – How to Argue that Your HIV Diagnosis Meets the Listing
One way to win your Social Security disability case is to argue 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. When you look at the table of contents for the listings, you will see that Social Security has broken down the body into fourteen (14) different “systems.” For example, there are listings for the musculoskeletal system, the cardiovascular system, the digestive system, etc. Within each “system” you will find specific conditions and associated diagnoses.
If your medical condition exists at “listing level,” you qualify automatically for disability benefits. Remember that Social Security’s definition of disability looks for a medical condition that prevents you from engaging in work-like activity. 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 in a competitive work environment (8 hours a day, 5 days a week).
Because listing level conditions automatically qualify you for benefits, Social Security has made the listings very difficult to meet. Usually, but not always, listing level cases are identified at the initial and reconsideration levels of appeal and approved there. However, the combination of delays in the evaluation process, and the complexity of many medical charts, means that listing level cases slip thorough and end up before an ALJ at a hearing.
Teach Your Doctor About Listing 14.08
The listing for HIV falls under the Immune System at Listing 14.08. When you review this listing you will note that it is unusually long for a listing and that it contains references to multiple complications that can arise from HIV.
In order to prove that you meet this listing, you will need your treating physician to write a narrative report or fill out a detailed checklist that tracks this listing. Ideally, the physician who fills out a listing checklist will be a doctor who has followed you for an extended period of time and who is prepared to go on record on your behalf.
Since HIV can be a progressive disease, your doctor may need to identify when your condition deteriorated to listing level status. With hearing delays running two to three years, it is not uncommon for an HIV patient to begin the application process not at listing level, but to end up firmly within the parameters of a listing. As a matter of strategy, therefore, you may need to argue for disability based on both a listing level theory of your case as well as a functional capacity theory.
Finally, as you review the HIV listing, you will note repeated references to other listings (other medical conditions). This means that your doctor will need to have a working knowledge about those other conditions. As a practical matter, however, if your treating doctor for HIV believes that you meet a listing, there is a good chance that you will prevail.
More and more, Social Security judges are calling “medical experts” to the hearings for the express purpose of evaluating your medical record to determine whether you meet the HIV listing. My experience with medical experts generally has been good – most medical experts are retired but still very intelligent and capable physicians who originally learned about HIV in the 80’s when survival rates were not as good. As such, they tend to be more willing to give HIV patients the benefit of the doubt, and at least in my experience, tend to be more open to the overall physical and metal health issues that affect most HIV patients.