file a new claim for disability because he received veterans benefits for service connected disability this allows him to receive social security disability insurance i have pursued it vigorously and in this case i am pursuing it here because i think it is important i think it's very important that you have an individual who's been found in august of one thousand nine hundred eighty to be thirty percent disabled by the veterans administration because of  rule is obviously you cannot bring up something for the first time in appeal and i'm sure that you're aware of that of what is you know what exception do these three issues fall under your honor i think it falls under the exception  basically legal issues that they are certainly it's in equitable and it's unconscience of a manifest injustice basically not to guess so i guess that i could make the devil's advocate are make your argument that that would cut against you when you've had the opportunity to present them and you don't then to raise some for the first time on appeal that that's obviously something that you know is front frowned upon because ninth grade education he relied on legal counsel at the hearing and have a different counsel absolutely district court level neither of those attorneys again i have no idea why raise these issues should they have doesn't that foreclose any claim that he has that part of his disability that is severe is psychological and limits him to the claimed physical disability it would your honor if you just decide that those issues are waived mean i'm limited to the three other issues that i raised which were the his issue of credibility his issue is whether there was the issue of whether it was a complete hypothetical percentage of the vocational expert which i would argue that was not because it did not include is this work still available if you didn't do them well i'm confused about when you're saying time or a man on the credibility because if there's an adverse credibility then aren't we just reviewing whether it's adequately supported on the record what's the standard of review one that and then we don't get to despite it in the first instance here we have to look at what was done and whether what was done is supported by the evidence that was presented right and i think that's the weakest argument i have your honour's the credibility i think consider your strongest argument i consider my strongest argument the hypothetical to that either did not include the side effects of the medication that mr gregory was taking was heard of that but  and that's why i asked the appellant you know why you know why is this you know how does this fall within the exceptions and do you want to respond to basically wiped out what she said i mean i think that the your question of law involved this group is and involved the medical vocational guidelines so if if if a claimant would be disabled under those grids they would certainly be entitled to disability because they're either disabled under the grid's or not disabled is that it happened some time and there's a reference to it in a may two thousand report that he was thirty percent disabled we don't know exactly when that happened we know that mr gregory testified that this disability rating happened sometime in august of one nine hundred ninety eight and wasn't quite understanding what they have help with spain in terms of because of the thirty percent disability that that he doesn't qualify for other other things that he might that someone else would but i mean i'm not i got that sense that there's just there's something particular to his situation because a thirty percent disability that would disqualify him for an event if it's someone else might be able to qualify for and i also see a little confused as to that argument however i think what we need to look at what what's in the facts what's in the records what do we know about his alleged mental impairment t and i think if you look at the record in its totality we know that during the relevant time period under review the person in time period he was not assessed in any way with any mental limitations by any of his health care providers he no health care provider had indicated that he was having any psychological problems no health care provider during the relevant time period and facts of that tell you that there was a need for a development of the mental impairments with the further of limitations as a result two to assess limitations as a result of a mental and there's nothing in the record that demonstrates that what we do also know is that during the relevant time period he didn't seek any treatment for mental impairment he didn't go to  we know that he went to counselor at of the day prior to his surgery and but never returned after his surgery and i think the a l j logically concluded from that that you know he was having a relatively good recovery period that from the surgery that he was reporting he was not experiencing fatigue he was not experiencing shortness of breath he was engaging in activities to remodeling homes doing not include his claim that that have not produced the side effect of fatigue and the hypothetical and so well basically it goes back to this credibility whether or not his that and sound that found an adverse credibility adverse credibility and he provided clear and convincing reasons i think you had asked earlier what the standard was and the standard is providing clear and convincing reasons he did that in this case he said that  not including that in the hypothetical what standard of review do we assess that by well there is nowhere that you didn't include that in the caribbean the in the hypothetical to the vocational expert there is no error sally's if there's no error but well i i believe that the l j looked at the totality of the evidence and made to make conclusions and findings based on substantial evidence within within the record and i believe his evidence or his findings were supported by substantial evidence and free of legal air and we asked this court uphold the decision of the district court and affirm the decision of the commissioner finding mr gregor was not disabled pursuant to the definition of  service connected then the person can double dip if you will and receive both social security disability and if you event benefits that to my knowledge is the only area at the present time in which somebody can if you will double dip w claim and start a new period he is not eligible for s s i because he receives the benefits s s i is means tested and counts the v a benefits as income and therefore he would not be able to receive justice and that would be the other benefits he would not be eligible for has nothing to do with thirty percent i apologize if i misled the court i would ask this court under these facts with the a the summer of two thousand two thousand he had made another application to increase his benefits it was increased at that time that is the point at which they did some more testing and that is also in the record i think if the court looks at that record it will when our cunningham