no you're right there was no calculation whatsoever it was never proven by anybody there's essentially no evidence whatsoever provided that shows the amount of work it performed and in fact if we take the credibility findings the work seems rather than minimized rather the purpose of this law and i think this this would prohibit people who have had our twenty four month disability insurance recipients to be afraid to do anything you know essentially this report will require somebody going out and picking up a can for m fifty three months right correct he was collecting checks and it's the government's position and that each each month constitutes separate violation but at the same time when you're collecting those checks you're not really affirming anything i mean so in specter whether he knew it was whether that would be misleading just to collect checks and do minimal work over that time is very odd to impose a penalty and the forty seven thousand dollars is the amount of  benefits that he received during that period right and that would depend on a finding that he was not in fact eligible for those benefits would i believe he there is no determination whatsoever that he was not disabled through that period and there's and the definition of materiality is a statement that can be used to get benefits if you can't use work to deny benefits that doesn't make sense well the problem is the statute doesn't make sense right because it does say  benefits can be denied if the person engaged in substantial gainful activity which implies that the person worked so it kind of goes both ways on that and the definition of materiality in general in the law is pretty broad but i mean let's go back to the amounts again the with respect to the hundred six thousand dollars suppose we decided and i know this that you would say we shouldn't suppose decided that it is correct that he is responsible for material omissions through fifty three months and then i guess it would be clear that it's legally  vailable who give as much as two thousand dollars a month my next question then would be if we get to that point do we have the authority to just assess the general reasonable miss of the determination that that should be the fine i think if you get to that point you'd probably have to send it back to the fact finder to determine what minds and when he was working you know we have no basis as that when he was working it's just an assumption and answer very broad if there was a period of fifty three months during which he perhaps worked intermittently the material omission to report would occur only during those months during which he didn't gauge and work at most again assuming away your other arguments yes that's right that's what would be our position because if it's even unfair it is to assume anything in the record whatsoever proving earnings proving finance is proving anything that he was working through that right that's a standard right exactly they did find it and then i believe what happened after that is the try to report him to the u s attorney's office for criminal prosecution and they declined i think that that's why haven't so at the end of the day there is no proof that doing you judge the materiality as of that point you don't say well at the end of the day after we did an investigation we determined that it didn't matter it was ok if he has something that might lead to that investigation happened here well yes so he did get benefits he just didn't get the money in his pocket but the and it's like a debt to somebody and i work for them and they pay me but then they don't actually give me the check because they credit against my account i've got an income i've gotten benefits they paid me right so you're and always you are not contending here that there is no evidence that at the end of the day mr capello was found by the social security administration not just to have a medical disability but to be entitled to and to actually receive benefits even if he didn't get the cash in his hand twelve the reason is in two thousand and twelve there's no evidence that he is then engaging in substantial gainful activity the evidence and then record as the a l j found is that his work ceased in two thousand and nine and that he withheld disclosure of that information cysts substantial gain flack to be during their relevant years however if that's so how it how can you defend the forty seven thousand our assessment which turns on how many benefits he received that he was not entitled to not that he you know there should have been an investigation and he did to put that investigation away by not disclosing things wouldn't it be required to show that that misstatement by him caused him to receive these  critical problem there is that mr competitor actually did not contest and there is under this the penalty statute issue exhaustion is required and mr never contested at the ministry of law judge  social security regulations for a ford at fifteen eighty eight which is part of the title to implementing regulations and tells and respond to disability beneficiaries that they are required to report their earnings changes in their working right but most of the questions we're asking you are not about whether he violated the law by not disclosing things we're focused on the penalties and many of these questions and the question i continue to ask you is is it not the case that the assessment is really a measure of damages to the government and depends on a finding that these are benefits to which he was not entitled which in turn would depend not just on whether he was truthful but on whether he engaged in substantial gainful activity or not yes so and there i think it's been established that there was never a finding that he did and my next question was are you contending that that argument was somehow waived because mr competitor never argued that whatever else was true he never caused any loss to the government yes you are saying that was wait i'm saying that was had a way of this argument both a l j and determination of reasonable this rather than send it back a third time right but if d a p had no testimony before it so it was based on the record that was before the al jazeera now i want to emphasize tha was trying to get to before the not getting there very directly but the any failures of proof by this or security administration in this case are caused by the fact that mr pettitte withheld evidence for over eight years so part of the reason that social security under fifteen eighty eight requires disclosure all along the way is that they have the ability and in fact in retrospect to say you were overpaid and we're going to assess an overpayment going back three years now if  the disability beneficiary discloses this information to the government surely they make themselves vulnerable to attack and can be found by telling social security what they save themselves from is the possibility of being assessed a civil monetary penalty penalty for withholding information so absolutely that the reason is structured the way that it is is to induce beneficiaries to report even when they don't think idiosyncratically that it's material or that it's important they have to tell social security mr capello was aware of this and that's obvious from his his own admission but also the testimony of mr cameron where he said mr peggotty that he could work as long as he kept his dollars under a certain value now that may actually be true that he would have been eligible to continue receiving benefits as long as he didn't earn at the social security level but is it really up to mr padded to make that decision the search security regulations say no you're required to tell us regardless and that gives us the proper information to perhaps investigate further so if mr cabana had told them i'm working sporadically they could have perhaps then with that information maybe they would have gone into an investigation into what his which is essentially a benefit to the beneficiary because they can get more benefits without having to reapply now during the think thirty six months three entitlement period the first month in which a beneficiary is found to have gauged in substantial gain fle they're found no longer disabled in the following months if the beneficiary says well i'm no longer earning at the state substantial gain flecked to the level now i'm earning below that that person for that month isn't titled benefits however at that point social security can look at the at the activity that's behind the earnings the reason that's vitally important is that if a person for example works for a small family company and has control over the amount of money that they earn then social security doesn't only look at the reported earnings they look at the value of the work in the economy so the question is you know mr competitor reported that he only got twenty bucks for running to go get cigarettes but in the national economy what was that work actually worth and that's all that he got but the other thing that he did mr pettitte received in kind work on his own home and we don't know what the value of that was to security would you under these but there was nothing like that right well but that's not actually the inquiry that social security would do they don't look at the value of in kind work received what they do say were aware that kind of work was rather in kind payment was received so now let's analyze the work activity that was done and see what its what its value was that value might not be consistent with what the value of the pool was but what social security is looking at is and by the by the way when they look at  the other information and this is laid out in fifteen seventy four b to roman to when they look at other information about work activity they look not only at this first question of what is the work actually wor know that when they they look at the work activity in order to determine whether you have control over your earnings but also what you're capable of doing and so if you were raising if you were lifting fifty pound bags of flour they can look at that and say it looks to us like you engage in activities of daily