that's that's pretty clear in the law the case the facts are in this case are that she she recently but they're still the second from yes yes but but the opinion below conflates to two elements of waiver the issue of aside the noncompliance with the set aside rule with the fall put them into under the fourth category as opposed to in the equity and good conscience can correct and that does seem to be likely and regulations the way they sort that doesn't seem to be necessarily to make much difference if in fact the failure to comply with the sense i had of the gauge and dooms the equity in good conscience prong and here the problem is that the board found that she failed to comply with the equity i mean with the same side of the cage and then it comes down to a question of notice right whether she had notice of that set aside obligation your argument is that while she understand yes if she wasn't supposed to cash the checks or she actually parsed the language in a more refined way to say she understood she was opposed to cash the checks but she thought that only applied to the first well i think this potential evidence for the latter with i she didn't have an opportunity to be heard on knowledge and she never offered on this on this issue so yes so the on the record we have here although we think that's a error for not allowing her to open the record to have a hearing but it was just still pretty much the same as it probably is right now it was it was least it was up before the board to have it if o p m would have reduced it but then we could we can't second guess ultimately i mean their determination with respect to that so i think i don't think that we can get to that question and yet i did so i don't see anything that related to what she felt that she would have submitted that would change the question of whether she was notice in two thousand and eleven and you if you look at what she wrote her own words in the end for the the appeal and the position for review she seemed to understand and  that exception exception to fall as far as you click ability of the seven side provision we think is substantial evidence in mrs boyd's favor that says instead of set aside provision is not know you you said you could be natural the way that i suggested one could read natural but it seems to me the language is pretty clear it's what garments of thought if if the appellant received notice that her first annuity payments would be reduced for receipt of social security benefits she was required to set aside that portion of the long so necessary to repay the old people so i mean she received the notice that she would be required to have a reduced payment and she was required to set aside that seems to be what the board saying so i'm not sure that notice is anything more than getting both june eleventh letter as i read that you leave it differently maybe  paid to the third month i think her and her view or her understanding was that there was no set aside done the question of some sort of per se but there was no need to hold those checks because she was gone twelve month period a twelve month period though if you read this language and i'm really just looking at it for the first time and the argument you're making but it looks like what it said is that first disability benefit is always going to be reduced if you were sentenced in social security benefit and it is reduced by one hundred percent of the benefit payable for twelve months so she was on notice that regardless of where she was in the time period that there was going to be a very duction her first benefit obligation at and have an  little unclear as to the state of the record with respect to the first i take it o p m lost or otherwise didn't provide that the two thousand and thirteen financial hardship statement correct yes that the board never done that but they also asked her for the same letter that says we have we o p m have your twenty thirteen document is the same letter that says but that's out of date anyway we need a new document and we don't get that document that doc know you're not going to get it started on so you can see that the faulty analysis was wrong you know your are right we do not see that falls analysis or she did provide notice is that the end of the inquiry well had she raised the fault either way and here is her briefing ms boyd seems to argue both suffered she times argues i'm without fault and other times she argues over from notification under either of one however she's not entitle to waive and she's not entitled to waiver because  let's let's start where i can really want to fix on this the fault analysis was wrong right no you how can they say she was fault when there is the proper notification regulation that says if you probably notify you are not at fault period because that's an exception if if we were to go down that line and we can then you go into the second part of  i certainly agree with that absolutely there now may be an enormous meaning of the rather than conceding that there's an error here you're making it seem like this is something that the board or o p m would regularly do which makes me think we need to re manned and say do this over because it was wrong and to say that or that a pro se receiver of benefits is supposed to understand the regs better than o p m or the board is a little bit troubling  didn't notify them right away if you notified them right away there's an exception to the flaw in the end of that discussion then you move on to the equity and good conscience and an entirely separate section of regulations says the seller side real school if you don't comply with it it disqualifies you from getting equity in good conscience but that's not under fault as i understand it you're telling us oh yes it is and i'm not seeing   very clearly this set aside is part of the equity in congress and that the a j made a mistake then in saying that she failed at the thought stage is opposed to having said fine she found it at the fault stage because of the that she gave notice that she received this extra payment but should have said but moving to the equity in good conscience that's where she falls down because of perception certainly the from a traitor to could have records that way and what are you should know it and if you're on the planet you should really know it because this is this comes up a lot so if this is a question that falls under equity in good conscience we have to get that straight and it's looks to me like a duck can you tell there that that raise from his boyd is the only argument you razors both well and now with the assistance of counsel is financial hardship financial hardship expressly cannot satisfy the equity in good  conscience part of the task if the first part of the test is resolved because a proper notification the only way to satisfy the equity in good conscious which you've given proper notification is through an error of the board and the policy guidelines express question of whether or not she had been notified that just that set aside the tax would know that would go back to that would go to the fault of the fault question is did you know you were getting a double came under equity in you were agreeing with me the regulations and my reading the regulations is exactly the same as judge amounts i am i'm disagreeing that once you get into the second step this equity and good conscious that there is reason to think did the person acted fault at all to the person you know that you've stepped beyond that because the recipients knowledge is under the first step the whole point of the prop notification exception is the recipient is saying ok i am aware i'm getting a double  i'm giving you notice that i'm getting a double payment and she did that she did that so she's not going to fall category and so there's there's no need to go further into what her mind is the question is once she's out of that can she get waiver and she can't because the only way to this exceptional circumstance where o p m ok except i understand that if opium sits on their rights for forty years or something but are you saying that the seven sided rule applies without regard to whether she has notice of the need to comply with a set aside no i'm saying the set aside rule the whole point of a set aside because it presumes the notice that that's not a point of the of her giving notification she's saying i know i've got this double  p m such as this delay and there's the opening for other exceptional certs to look like you're saying is that when you get to the set aside rule that's an absolute rule it doesn't require knowledge should have no notice or anything else on the person who made the person aware that the person at fault if they haven't set aside the money so the only question then is is there exceptional circumstances notice at that point no longer matters because what's the point of the of exception the guidelines that say you are not at fault and you're saying but yeah but you're still a fox because you still than said citing it makes no sense because in the case that o p m then takes too long or does as quickly as possible knowing that they may have problems than actually knowing the money rather than saying oh well we know you're going to get a double payment down the road so we're just not going to pay anything and you're just on your own into all the so security benefit is resolved so instead of doing that you get the retirement benefit is given immediately with the notice that says when you get your social security we're going to have to reduce your benefits so set it aside don't pay anything don't use that money you're going to have to repay from the first twelve months the benefit that doesn't that presume that that they got notice of don't set it aside we get the yes but that's i mean that's goes back to the four point and the exception under pro notification the problem notification point is you get the noticed the notice says notify us she did they did it there are two questions here and we keep completely the first is did she get notice that she was getting she didn't have to get notice of her obligations under the same side will because that rule applies automatically if she got notice that she was getting double payments is that your position to make clear i that there isn't a notice requirement for the sunshine part of which is to save the second half of a letter had never been sent to her she'd be in exactly the same position is that your position you know we can presume that what the exception says is the only way to get waiver is with these exceptional circumstances so it doesn't matter her argument of oh i didn't understand i also matter and also the whole fault analysis should just be out the window what once you do the exception the hope one of the fro notification exception is to say yeah you were at fault but you give proper notice so we're not going to worry about fault the only question is is there one way it would never have to worry about if you were right you would never have to worry about thought because you say you shouldn't gotten a second payment and as long as we didn't do something like wait for four years that you have to pay it back so forget about your welcome you and take the hypo where she doesn't give notice she gets a letter and she doesn't do anything  i mean the rules are set up so that the recipient again there are other ways that this could be set up with the rules are set up so the recipient informs o p m of the double pairs part matter what it would matter for example if the recipient didn't receive the notice at all period didn't get recipient would validly say i was not a car i didn't understand this i didn't know i didn't get to meet with then you're the second problem though you say doesn't matter they would still get get the they would still have the problem no one and then if they're not at fault then the recipient could argue financial hardship and say i didn't know about this i didn't understand this i never got your notice i only know she's not a full this is what i don't this is why i'm so confused but she's not a phone because of the prompt notification exception right that's that says we understand the elements of falter here but you gave prompt notice right which is your statement of you know you're getting these two payments right and therefore we're not going to deal with even though you are at fault exception will go to the second part of the task and if there are exceptional circumstances under the second part of the test can she argued by marital hardship at that point she cannot the clear language of the policy guideline says financial hardship and not satisfy the second part of the test if you're relying on this problem notification exception well if if there is no satisfaction of the service side rule which brings us back to the question of whether the set aside rule has a notice requirement in bed still not sure i understand whether you're saying it does or it doesn't which is another way of asking that question is to say if she had never gotten the bold paragraph on the back of the june eleventh letter would she be in exactly the same position i'm at that's a yes or no question i really am interested in whether your answer is yes or no she got no notice of the set aside requirement i think if she had gotten no notice that she have to be notified of the set aside obligation which once again did she have to get the second half of that june eleventh letter i think and i am sorry to say something i know will not be satisfactory to your honor but i think if you get half of the letter you have an argument over i am not it thought i didn't understand i can argue my thought corey the point we are making here is when you get to if you're going to be under to set aside exception whether you understood it or not the only way you can get waiver is if o p m made an error that constituted exceptional circumstances ok th president has this language of setting aside the checks but maxwell nonetheless remained it back to the board to find a determination whether or not the entire tire in that case knew or should have known it is an over