Perhaps the most common argument used by Social Security Disability lawyers to win an HIV/AIDs Social Security Disability case is called a “residual functional capacity” argument. When arguing functional capacity, your attorney will argue to the judge that you no longer have the capacity to perform competitive work because of:
- your underlying medical condition
- multiple medical conditions
- medication side effects such as fatigue, nausea or poor concentration
- depression/anxiety that arise from dealing with your medical problems
Remember that Social Security’s definition of disability looks to your capacity for work rather than just at your medical problem. In theory, you could have serious medical problems like congestive heart failure, herniated discs, insulin dependent diabetes, even cancer, but if your doctor will not go on record to say that one or more of these conditions will prevent you from performing a simple, unskilled job 8 hours a day, 5 days a week, you will not win your case.
There are several case strategies that I use to win SSDI cases. One is called a “listing” argument, which you can read about by clicking on the link. Another is called the “grid” argument. The most common case strategy is the functional capacity or “RFC” argument.
When presenting an RFC argument, my main goal is to demonstrate to the judge that you would not be a reliable worker at even the easiest, sit-down, low stress job that exists in the national economy. In most hearings, Social Security judges hire expert witnesses called “vocational experts” to testify about your past work and about what you might be able to do given the limitations that arise from your testimony and the medical evidence presented.
Our job, therefore, is to identify as many specific limitations in work-like activities as we can. With every limitation that the judge accepts, categories of jobs will be eliminated. For example, if we show that you have medication side effects that cause occasional drowsiness, we would eliminate all jobs that require driving, or those that require the use or ropes, ladders and scaffolds. If the judge accepts that you cannot lift more than 5 pounds, then we eliminate all jobs that have greater lifting requirements.
Functional Capacity Limitations Arising in HIV Cases
In HIV/AIDs cases, the functional capacity limitations that I usually see involve reliability. Frequently HIV patients suffer from diarrhea or constipation, meaning that they may need ready access to a restroom and may need unscheduled bathroom breaks. Depression is often associated with HIV, meaning that concentration can be impaired, and the HIV claimant may need to avoid jobs that require regular contact with the public. Opportunistic infections may result in frequent absences from work, or unscheduled work breaks.
If you doctor will document these limitations – preferably in a functional capacity checklist – the cumulative effect of your limitations will result in testimony by the vocational expert that there are no jobs that exist in the national economy that you could perform in a competitive basis.
HIV/AIDS cases often involve a combination argument that refers to both the HIV Listing at 14.08 and a functional capacity argument. Because you may have good weeks or months and bad weeks or months, there may be some times when you meet a listing, whereas other times that your condition is not at listing level, but your capacity for work is nevertheless significantly impaired.
Since one of our goals is to push back the onset date of your disability as far as possible, we may use one or both of these arguments in developing your case for hearing.