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Torres v. Chater, 97-1026 (1997)

Court: Court of Appeals for the First Circuit Number: 97-1026 Visitors: 5
Filed: Sep. 09, 1997
Latest Update: Mar. 02, 2020
Summary:  LUIS TORRES SHIRLEY S. CHATER, COMMISSIONER APPEAL FROM THE UNITED STATES DISTRICT COURT Torruella, Chief Judge Morris Greenberg on brief for appellant. claimant had a normal range of motion in his knees We note that the magistrate-judge concluded that the
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[NOT FOR PUBLICATION]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. _________























Source:  CourtListener

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