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                                [NOT FOR PUBLICATION]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.
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                                 ____________________



            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

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                 Per Curiam.   We have reviewed  the parties' briefs  and
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            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.
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