Opinion
March 31, 1999
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 [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), 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). 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) 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; Matter of Taylor v. Coombe, 228 A.D.2d 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 N.Y.2d 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.