[NOT FOR PUBLICATION]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.