Williams v. Wing

259 A.D.2d 1043, 688 N.Y.S.2d 347, 1999 N.Y. App. Div. LEXIS 3477

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 1999
• Status: Published

Opinion

Determination unanimously confirmed without costs and petition dismissed. Memorandum: Substantial evidence supports the determination that petitioner is able to engage in part-time work with limitations regarding lifting, bending and prolonged sitting or standing (see, Social Services Law § 332-b [4] [e] [ii]). Respondents were not required to accept the opinion of the treating physician and nurse practitioner that petitioner is fully disabled and unable to work (see, Matter of Ehlinger v DeBuono, 249 AD2d 303), particularly in view of the inconsistencies between that opinion and the testimony of petitioner with respect to her daily activities (see, Matter of Collins v D’Elia, 104 AD2d 1035). Petitioner’s contention that respondents erred in relying upon the evaluation conducted by a nurse practitioner who was not certified by the Office of Disability Determinations (see, Social Services Law § 332-b [4]) is not subject to review because it was not raised at the fair hearing (see, Matter of University Hgts. Nursing Home v Chassin, 245 AD2d 776, 778; Matter of Taylor v Coombe, 228 AD2d 851). Finally, the record does not support petitioner’s contention that the determination is arbitrary because it is contrary to a prior determination of petitioner’s employability (cf., Matter of Field Delivery Serv. [Roberts], 66 NY2d 516, 520-521). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Onondaga County, Elliott, J.) Present — Denman, P. J., Green, Pine, Hayes and Hurlbutt, JJ.