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Stephanie O Joy, Esq
Stephanie O Joy, Esq, Soc. Sec. Attorney
Category: Social Security
Satisfied Customers: 13284
Experience:  19+ years legal exp. - 10+ years owning/operating her own SSD Law practice.
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I just recently had my hearing security disability. reason

Customer Question

I just recently had my hearing for social security disability. For some reason social security did not show my employment records for 2004,2006,2007 and 2008. They had 2005. So I don't understand why they didn't show the other years. I was self employed during that time and filed a joint return with my spouse. I received a 1099 misc. every year and filed through turbo tax. I don't have copies of my returns. I had them stored on my computer, it crashed so I don't have them anymore. I called IRS and they can send a transcript of 2008. But to go back any further I would need to pay $50.00 for each year to get a photo copy. What would be the reason social security don't have my records? Is it possible that I didn't pay social security taxes and if I didn't and I get copies will I have to go back and amend my taxes? I guess what I want to know for sure is what is the judge looking for. Does she just want to know I worked during those years or is she looking to see if I paid social security benefits? I was able to get copies of my 1099' misc. forms, for those years and if all she needs is to see I was working during that period of time. Would that not be sufficient?
Submitted: 1 year ago.
Category: Social Security
Customer: replied 1 year ago.
Or could she look it up under my spouse social security number. If I have to request copies. What social do I use?
Customer: replied 1 year ago.
I meant to say was she looking to see if I paid social security taxes? not benefits..
Expert:  Stephanie O Joy, Esq replied 1 year ago.

Did you use a tax preparer or file yourself? Or, did you spouse do the filing?

Customer: replied 1 year ago.
Filed myself through turbo tax. I already told you that.
Expert:  Stephanie O Joy, Esq replied 1 year ago.

Hi Pamela,

Sorry for being unaware that you filed the returns yourself - but often tax preparers will use turbo tax as well, so it was not clear to me that you attempted to do it yourself, particularly when you state you don't have copies, which normally the actual filer would keep hard copies of. With regard to your post:

"I just recently had my hearing for social security disability. For some reason social security did not show my employment records for 2004,2006,2007 and 2008. ------- This should not have been learned as late in the date as your SSD hearing! Your attorney, if doing his job, would have seen this long ago and discussed it with you to see if there were legal remedy to correct it. One of the first things most experienced SSD lawyers do it confirm the insured status of a claimant AND have the DLI (date last insured) so this is not an issue at hearing.

"They had 2005. So I don't understand why they didn't show the other years. -------- The 2 typical reasons would be 1) You never actually filed and paid SS taxes on that income or 2) you did, but somehow there was a reporting glitch between IRS and SSA. (See here for more on the agreement between IRS and SSA: https://secure.ssa.gov/poms.nsf/lnx/0203320001). Let's hope it was the latter.

"I was self employed during that time and filed a joint return with my spouse. I received a 1099 misc. every year and filed through turbo tax. ------- OK, unfortunately, it appears that that will not be enough... even though the the 1099 Misc you received perhaps as contractor helps prove gross income paid, it does not prove NET income after business expenses, and it is net income that determines whether there is enough income to garner 1 or more (up to 4) quarterly earnings credits that here. Federal court case that denied ability to use 1099 instead of tax return is discussed by SSA here: https://www.socialsecurity.gov/OP_Home/rulings/oasi/33/SSR82-20-oasi-33.html

"I don't have copies of my returns. I had them stored on my computer, it crashed so I don't have them anymore. ----- So sorry you didn't have a back up.

"I called IRS and they can send a transcript of 2008. But to go back any further I would need to pay $50.00 for each year to get a photo copy. ------ That would be a great idea. It certainly will pay for itself if you can prove you DID file timely AND, can prove disability. These records are not only required for the "recency" test for SSD, but also to get you your deserved SS AMOUNT, be it disability or retirement later even if you can't prevail on the SSD for whatever reason - your primary insurance amount (PIA) for retirement purposes is also effected.

"What would be the reason social security don't have my records? ------ Typically either 1 or 2 above. Also, in the past when you reviewed your annual SS earnings statement, if you see those years were reported back in 04-08, and suddenly now, when you print it out (or receive it in mail), those years have disappeared, those years are blank (the ones you mentioned), this likely means that the SSA computer actually had a glitch. So I'd get the IRS transcript/returns and prove it.

"Is it possible that I didn't pay social security taxes -------- Yes, if you filed your tax return but didn't file your tax returns properly. If done right, You would have a Schedule C for self employment income, that goes by the self employed person's SS# ***** and that is how your SE tax is determined (which pays your Ss and Medicare taxes to your reported SS #) and reported under your SS file (not your spouses). I can say this with certainty because I too file jointly and I too am self employed.

"and if I didn't and I get copies will I have to go back and amend my taxes? ------- Before you do so, know this: Generally, SSA will only give earnings credits for amended returns that happen within about 3 years of the year they apply to (the 3/3/15 rule). See here: https://faq.ssa.gov/link/portal/34011/34019/Article/3853/How-do-I-correct-my-earnings-record

Anything older being amended, won't count UNLESS they will provide an exception, such as you can prove it was IRS fault, that proper returns were filed, etc. ("you can correct your record after that length of time to:

  • Confirm records with tax returns filed with the Internal Revenue Service;
  • Correct errors due to employee omissions from processed employer reports or missing reports;
  • Correct errors "on the face of the record" that is, errors we can find by examining our records of processed reports; and
  • Include wages reported by an employer as paid to an individual, but not shown in our records.")

"I guess what I want to know for sure is what is the judge looking for ----- there is no bright line rule, that is why we push our clients to get all evidence, every CRUMB, because some judge's are easier to convince than others and it is the nature of an evidentiary hearing. It is also not clear that the Judge on your disability claim can actually make decision on changing your credits, since that has not been adjudicated below (or has it?).

------ However, the perfect proof IS YOUR Filed returns where you paid your SE taxes with the IRS letter or transcript confirming you did indeed file.

What can help may be proof that you PAID taxes. Because even if you can't find your returns, if you can show your CHECK where you paid the SE tax, that wouldn't happen without having filed the return. But, that may not show what amount was applicable to you, since you filed jointly. I mean, if you paid $5k in taxes jointly, it will not be clear what part you get credit for and what part your spouse gets credit for.

"Does she just want to know I worked during those years or is she looking to see if I paid social security benefits? ------ Both. It is the work, that produced the income, upon which SS taxes were due and payable. The reason why both are important is that some people who didn't work enough or recently enough for SSD, will allege they worked in an SE capacity. But fraud in this way has been known to occur because there is motive (getting SSD insured status or SSR insured status). No, I do believe a 1099 Misc is helpful if your income is reported on line 7... and assuming the entity that paid you reported that expense of pay out on this 1099 Misc. They will likely have to match up (he takes the expense, you take the income) to establish that the 1099 Misc is not fabricated, since any of us can produce these documents.

I was able to get copies of my 1099' misc. forms, for those years and if all she needs is to see I was working during that period of time. Would that not be sufficient? ------- No, you will want to get your tax returns. I suggest just ordering 1 for now (assuming time is not critical). If the IRS produces nothing for the one year you know you had the 1099 income, that may be a clue that it has none of those years that are missing from the SSA files. And that will mean there is no proof from the IRS that you filed at all UNLESS you have cancelled checks. Keep in mind, you may have cancelled checks (should) for your quarterly estimated taxes we are required to file when we are self employed (very burdensome, I know), but those checks are also helpful. Note that you may also find that IRS does have your joint returns, but that somehow you didn't file properly - your spouse's income may be all there but perhaps you neglected to file the Schedule C for yourself. The only way to know is to order it - and again, if you are not comfortable with $50 per for a few years, than order just one for now, so you see what the result is. If it is bad, it may be a clue that the other years are not going to be helpful to your case either.

So yes, your income, if reported at all, may be under your spouse's income if you were not filing properly when you did the task yourself without a tax professional. And, while I'd confirm your specifics with the SSA, if this happened, there is good reason to believe the SSA won't give you credit, even if you did amend and did pay taxes belatedly. So, if they won't, it may not be worth paying such taxes if you won't get credit, and opening that worm would give you a tax liability, possibly, with no credit to you, no benefit.

Expert:  Stephanie O Joy, Esq replied 1 year ago.

I hope this helps! My goal is to provide you with excellent and accurate service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions.

Kindly rate me "excellent" when you are done. I look forward to assisting you in the future, should you have legal questions. Be sure to start future posts with "To ***** Esq., ONLY" if you want me to specifically answer it.

Sincerely, ***** ***** Joy, Esq.

Your online SS legal resource!

Customer: replied 1 year ago.
I found a copy of my tax return for 2007. It appears we filed married filing jointly as a business under my husband name as business name with his social security number.So on Schedule C profit and loss from business sole prorpietorship it has his name and social security number. A,as realtor Business name my husband name I entered on B code 111144 per instructions. So on Part I income that was where I entered my gross sales then expenses. I did the worksheet. and on my 1099 it proves that was my income. I entered on the first page the adjusted amount under number 12 Business income and attached schedule C. So I have proof from 1099 and schedule C . My social security number is ***** the front page, but as I said it was filed as a business and I followed the instructions for a business. Now what?
Expert:  Stephanie O Joy, Esq replied 1 year ago.

I am not an accountant so I can't much comment on the errors made when filing. A business that is a sole proprietorship has the income go to whoever is claiming that income, regardless of whether it is a 'business'. But what is weird is how the IRS hasn't yet caught that the 1099 is in your name, assuming it was erroneously included as HIS income. Again, you can amend your returns to correct this but my concerns are the rather strict rule that the SSA has about not accepting amendments beyond the 3/3/15 rule.

The 1099 was yours but apparently filed as his income (and IRS doesn't seem to correct things if it won't profit from the error correction), and the Schedule C doesn't help since you indicate you filed that as his income and expenses from that business, not as yours. You can try, of course, but remember that if you file the amendments, you may end up paying taxes and not getting the credit, due to the SSA regulations on requiring a timely amendment.

Customer: replied 1 year ago.
It sounds like I messed up really bad. What I don't understand is I became self empoyed in 2003. SSA had record of that, then no record in 2004. Then had record in 2005 so I don't understand why I changed how I was filing. I thought I was doing the right thing, I guess. The date of my last insured was 9/30/2008. Do you think I have any chance at all of winning my case without the records? She ask me at the hearing, what my profession was and I told her I was an onsite realtor. Then she said, so you were a realtor for about 5 years, correct? I answered yes. She told me she would read back over my testimony and make a decision within 30 days. My lawyer is the one asking for the tax returns. I had also ask for a transcript for 2008 from IRS under my social security number, that was as far back as they would go.Without the 4506 form. .I just got it back and this is what it said.. Tax return transcript. Tax return transcripts are only available for the current and three prior processing years. If the transcript you are requesting is for an older year, a return transcipt is no longer available. Account trancripts are available for older years and may provide the information you need. Then it's just blank. So I guess I should have ask for transcript under my husband's social security number. Then I could be sure what happen in 2008. What do you think?
Expert:  Stephanie O Joy, Esq replied 1 year ago.

So sorry!

Self employed is when we earn when not an employee; we offer our service or goods to another (customer, client); we may our own little business and keep track of our revenues and expenses that result in our net profit/net income; we may also have some customer/clients that must issue a 1099 to any vendor, like ourselves, when they want to declare that a business expense of theirs... They send us the 1099 so we can file that 1099 with the IRS and use that figure as part (or all) of our business revenue... the customer also files HIS copy of the 1099 with the IRS because he is required to.

It does get confusing, and maybe you just forgot in 2004 and did it wrong, then corrected it in 2005, then forgot again -- I long ago started using a tax professional for my tax return, because it became to difficult to learn all the very changing rules and do it accurately myself, when I was concentrating my efforts on my 'real' work as a lawyer.

I don't see how asking for a transcript under your H's SS# ***** help, since that actually proves he has SS earnings and confirms that you do not. Although yes, it will show you what went wrong possibly.

I can't tell you what the ALJ will do - she has rules she must follow and testimony of "I worked that year, but don't know what my net was" and technically she must follow the rules that say that is insufficient evidence of a properly filed return. But, ALJs do sometimes fail to follow the law, and maybe in this case it will be in your favor. I get the feeling that the returns, however, will not help you - since you found one that showed you failed to file a return giving yourself credit for your work and that one can not be amended in a way that will give you SS credit because too much time has passed.

Expert:  Stephanie O Joy, Esq replied 1 year ago.

But, yes, if you think that it is not clear what happened, then you can order 2008, and if you think that year is the same for the other years... that is your answer.

Also, if you have never filed SSD before, and IF you can prove you became disabled in 2008 or before, you can still win. But if you became disabled AFTER your DLI, then you'd have to work (even very PT, like $5000+ net income after expenses) for 5 more years to get re-insured for SSD, then file again.

Expert:  Stephanie O Joy, Esq replied 1 year ago.

I hope this helps! My goal is toprovide you with excellent and accurateservice – if you feel you have gotten anything less, please reply back, Iam happy to address follow-up questions.

Kindly rate me "excellent"when you are done. I look forward to assisting you in the future, shouldyou have legal questions. Be sure tostart future posts with "To ***** Esq., ONLY" ifyou want me to specifically answer it.

Sincerely, ***** ***** Joy, Esq.

Your online SS legal resource!

Customer: replied 1 year ago.
I think the proof of me being disabled is in the medical records. Along with a letter my Doctor wrote that says she recommend I apply for disability in 2008 along with a lot more supporting evidence.Also the medical source statement form where she marked yes. That based upon your treatment and medical expertise combined with your patient and impairment familiarity, have the above limitations existed since prior to 9/30/2008. Have the above limitations lasted or do you expect they will last for 12 consecutive months or longer, she marked yes again. So if the judge reads the statement and letter, along with medical records the proof is there. So is there anyway I could win based on that?. Along with my testimony when she ask me if I was a realtor for about 5 years..Without any tax records ? Or should I send my 1099 to my lawyer like he asked me to.? Along with the 2007 return and get 2008 transcript with hubby's social? I think you already said it wouldn't help me anyway. Since I didn't file properly.
Expert:  Stephanie O Joy, Esq replied 1 year ago.

Again, if you can prove you were disabled before your insurance ran out (SSDIB), and that it has CONTINUED (so all years must typically be chock full of ongoing proof), then that is what it takes, yes. Make sure that you did, IN FACT, allege the proper onset date. If you asserts you were only disabled as of, say, the date your filed your application, say in 2012, you can not win, obviously, SSDIB. So look at your disc and look for "alleged onset date".

Remember, the concerns about the missing work history as alleged, is to CHANGE your Date Last Insured to something more recent and not have to prove before 2008, or at least also win if you can only prove it after, but before a later DLI. If you could provide proof of those missing years, and you have work proofs to 2008, you may have a DLI of 2013. Or if you proved work til 2014, you'd have a future DLI of around 2019, etc. Those work records main point right now is to establish your DLI. The more recent (or best, ***** *****) DLI you have, the more chance you have of winning. But if you can't change the SSA's DLI, you can still win if you prove disability BEFORE the DLI.

I think you should definitely send to your lawyer everything she asks for, of course! And no, I didn't say it wouldn't help, I said the law states that it can not suffice as proof to conclude that you are to be given more credits... (I sent you the link, you may want to read that) but that doesn't mean it couldn't have other uses. FOr instance, it can prove the TYPE of work you did... relevant for a different part of the process of determining eligibility... it may be part of the proofs for proving, if needed, that you worked UNDER SGA... etc. etc. These are other issues pertinent to winning, but you may not be privvy to but your lawyer is.... he can't likely explain every legal thought and plan in his head about your case, since he doesn't get paid for that and would never have time to actually work the case if he had to spend time as a teacher (when not needed). The issue of your tax returns has to do with CREDITS, to establish your DLI and whether you can prove disability started before the DLI (i.e. while you actually had insurance under which to claim... but that is only one of MANY issues your lawyer juggles and situates to get to the end result of AWARD.

Expert:  Stephanie O Joy, Esq replied 1 year ago.

We have well exceeded, I am sure, the scope of your chosen transaction here, so I will ask that an "additional services" option be made available to you, in case you need to have another question answered.

Expert:  Stephanie O Joy, Esq replied 1 year ago.

I hope this helps! My goal is toprovide you with excellent and accurateservice – if you feel you have gotten anything less, please reply back, Iam happy to address follow-up questions.

Kindly rate me "excellent"when you are done. I look forward to assisting you in the future, shouldyou have legal questions. Be sure tostart future posts with "To ***** Esq., ONLY" ifyou want me to specifically answer it.

Sincerely, ***** ***** Joy, Esq.

Your online SS legal resource!

Customer: replied 1 year ago.
I put on application I became disabled Aug 1, 2008. Date of last insured was stated as 9/30/2008. I guess the date of last insured was set at 9/30/2008 was because soc. sec. did not have where I paid in, correct? If I understand you correctly if my 1099 shows proof that I worked those years, then my date of last insured could be changed. Right? According to letter from Doc. I had never been diagnosed for my condition until 2007.But had it for many years prior. But she also said she put me on some medicine and I did very well. But she went on to say the medicine was extremely expensive and I could not afford it. So my condition continued to get worse, so by 2008 she recommend I apply for disability.and she said I was no longer able to function at work. Or would no longer be able to work. Oh, and I don't understand what SSD means. On my 2007 taxes I found I don't show where I entered 1099 misc. I put my income under gross income under husband soc. sec. So I know I can't get credits. But you said something about if I could proof I never filed SSD. Does that mean that I never filed my 1099's under misc. income? I think so? If that's true do I need to go back and file my 1099's. under my social sec. number? Or is that just going to open up that can of worms we talked about?
Customer: replied 1 year ago.
I'm sorry, I guess you can't answer this question, because we exceeded time allowed and no I did not accept you offer. I just need to wait and talk with my lawyer. Thank you anyway. I can go back I hope and read everything you wrote and try and understand it.
Expert:  Stephanie O Joy, Esq replied 1 year ago.

Good morning. OK, I think you may be forgetting your original question, DAYS ago, and then the several additional questions you added, which I, as a courtesy for your benefit, provided additional time and thought to answer for you, in fact, all weekend. I'll show you your questions first, then the additional areas where you had implied concerns that I also provided information on, so you would better understand the many aspects of your predicament. I say this because you state that I didn't answer your question. I suspect that perhaps I provided you too much time and thought here, so that when your "20th question",on a transaction whose scope is typically 1 question 1 answer, involved a crystal ball that no one can answer on your sparse facts, you forgot about the 3 days of answers to your many other questions and dialogue. Here is your actual question:

Q#1

"What would be the reason social security don't have my records?

A#1------ Typically either 1 or 2 above. Also, in the past when you reviewed your annual SS earnings statement, if you see those years were reported back in 04-08, and suddenly now, when you print it out (or receive it in mail), those years have disappeared, those years are blank (the ones you mentioned), this likely means that the SSA computer actually had a glitch. So I'd get the IRS transcript/returns and prove it.

Q#2

"Is it possible that I didn't pay social security taxes

A#2-------- Yes, if you filed your tax return but didn't file your tax returns properly. If done right, You would have a Schedule C for self employment income, that goes by the self employed person's SS# ***** and that is how your SE tax is determined (which pays your Ss and Medicare taxes to your reported SS #) and reported under your SS file (not your spouses). I can say this with certainty because I too file jointly and I too am self employed.

Q#3

"and if I didn't and I get copies will I have to go back and amend my taxes?

A#3------- Before you do so, know this: Generally, SSA will only give earnings credits for amended returns that happen within about 3 years of the year they apply to (the 3/3/15 rule). See here: https://faq.ssa.gov/link/portal/34011/34019/Article/3853/How-do-I-correct-my-earnings-record

Anything older being amended, won't count UNLESS they will provide an exception, such as you can prove it was IRS fault, that proper returns were filed, etc. ("you can correct your record after that length of time to:

  • Confirm records with tax returns filed with the Internal Revenue Service;
  • Correct errors due to employee omissions from processed employer reports or missing reports;
  • Correct errors "on the face of the record" that is, errors we can find by examining our records of processed reports; and
  • Include wages reported by an employer as paid to an individual, but not shown in our records.")

Oh, then there was Q#4:

"I guess what I want to know for sure is what is the judge looking for

A#4----- there is no bright line rule, that is why we push our clients to get all evidence, every CRUMB, because some judge's are easier to convince than others and it is the nature of an evidentiary hearing. It is also not clear that the Judge on your disability claim can actually make decision on changing your credits, since that has not been adjudicated below (or has it?).

------ However, the perfect proof IS YOUR Filed returns where you paid your SE taxes with the IRS letter or transcript confirming you did indeed file.

What can help may be proof that you PAID taxes. Because even if you can't find your returns, if you can show your CHECK where you paid the SE tax, that wouldn't happen without having filed the return. But, that may not show what amount was applicable to you, since you filed jointly. I mean, if you paid $5k in taxes jointly, it will not be clear what part you get credit for and what part your spouse gets credit for.

Then:

Q#5:

"Does she just want to know I worked during those years or is she looking to see if I paid social security benefits? ------ Both. It is the work, that produced the income, upon which SS taxes were due and payable. The reason why both are important is that some people who didn't work enough or recently enough for SSD, will allege they worked in an SE capacity. But fraud in this way has been known to occur because there is motive (getting SSD insured status or SSR insured status). No, I do believe a 1099 Misc is helpful if your income is reported on line 7... and assuming the entity that paid you reported that expense of pay out on this 1099 Misc. They will likely have to match up (he takes the expense, you take the income) to establish that the 1099 Misc is not fabricated, since any of us can produce these documents.

Q#6:

"I was able to get copies of my 1099' misc. forms, for those years and if all she needs is to see I was working during that period of time. Would that not be sufficient?

A#6------- No, you will want to get your tax returns. I suggest just ordering 1 for now (assuming time is not critical). If the IRS produces nothing for the one year you know you had the 1099 income, that may be a clue that it has none of those years that are missing from the SSA files. And that will mean there is no proof from the IRS that you filed at all UNLESS you have cancelled checks. Keep in mind, you may have cancelled checks (should) for your quarterly estimated taxes we are required to file when we are self employed (very burdensome, I know), but those checks are also helpful. Note that you may also find that IRS does have your joint returns, but that somehow you didn't file properly - your spouse's income may be all there but perhaps you neglected to file the Schedule C for yourself. The only way to know is to order it - and again, if you are not comfortable with $50 per for a few years, than order just one for now, so you see what the result is. If it is bad, it may be a clue that the other years are not going to be helpful to your case either.

So yes, your income, if reported at all, may be under your spouse's income if you were not filing properly when you did the task yourself without a tax professional. And, while I'd confirm your specifics with the SSA, if this happened, there is good reason to believe the SSA won't give you credit, even if you did amend and did pay taxes belatedly. So, if they won't, it may not be worth paying such taxes if you won't get credit, and opening that worm would give you a tax liability, possibly, with no credit to you, no benefit.

NOW, this was merely the 1/2 HALF of our time together. Exactly 1/2 (please see above). You received 6 extensively thorough answers despite the choice you made in transaction, and I did so out of compassion for your situation. I did not expect a dine and dash, although we do see them from time to time.

As such, I would expect a similar level of integrity in maintaining this thread that you initiated. I am rather shocked at the end tactic, to be honest, I didn't realize that you were seeking to avoid. But it is what it is and I will opt out so that other colleagues and review and see what has transpired, and then they can choose to contribute to your cause or not. Good luck with all.