
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                 _________
