

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 97-1026 

                         LUIS TORRES,

                    Plaintiff, Appellant,

                              v.

               SHIRLEY S. CHATER, COMMISSIONER,
               SOCIAL SECURITY ADMINISTRATION,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

      [Hon. Robert W. Lovegreen, U.S. Magistrate Judge]                                                                  
                                         

                            Before

                    Torruella, Chief Judge,                                                      
               Stahl and Lynch, Circuit Judges.                                                          

                                         

Morris Greenberg on brief for appellant.                            
Sheldon  Whitehouse, United States  Attorney, Michael P. Iannotti,                                                                             
Assistant  United States  Attorney,  and  Wayne  G.  Lewis,  Assistant                                                                  
Regional  Counsel,  Social  Security  Administration,  on   brief  for
appellee.

                                         

                       August 20, 1997
                                         

     Per Curiam.   We have reviewed  the parties' briefs  and                           

the  record on appeal.   Dr. Gibson's  examination found that

claimant  had   a  normal  range  of  motion  in  his  knees,

notwithstanding  the   indication  of   early  osteoarthritis

revealed by  the x-ray.   Claimant's normal  range of  motion

rebuts his claim that he met Listing 9.09(A) of appendix 1.

     We  note that  the magistrate-judge  concluded that  the

claimant's  failure to  oppose the  Commissioner's motion  to

affirm the judgment "alone" sufficed as reason to  grant that

motion.    This  is  error,  as  the  magistrate  still  must

determine that the moving party  is entitled to a judgment as

a matter of  law.  See Fed.  R. Civ. P. 56(c).   Nonetheless,                                  

the error was harmless as the magistrate thereafter recounted

and  analyzed the evidence and correctly concluded that there

was  substantial  evidence  to support  the  decision  of the

administrative law judge.

     Affirmed.                          
