WILLIAMS v. WING

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Karen WILLIAMS, Petitioner, v. Brian J. WING, as Commissioner of New York State Office of Temporary and Disability Assistance, and David Sutkowy, as Commissioner of Onondaga County Department of Social Services, Respondents.

Decided: March 31, 1999

Present:  DENMAN, P.J., GREEN, PINE, HAYES and HURLBUTT, JJ. Maureen Patricia Kieffer, Legal Services of Central N.Y., Syracuse, for petitioner. Peter Crary, Attorney General's Office, Albany, for respondent Brian J. Wing. Lawrence Robert Williams, Onondaga County Department of Law, Syracuse.

 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 A.D.2d 303, 670 N.Y.S.2d 357), 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 A.D.2d 1035, 480 N.Y.S.2d 948).   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 A.D.2d 776, 778, 665 N.Y.S.2d 475;  Matter of Taylor v. Coombe, 228 A.D.2d 851, 644 N.Y.S.2d 360).   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., 66 N.Y.2d 516, 520-521, 498 N.Y.S.2d 111, 488 N.E.2d 1223).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: