UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1768

NANCY MESTEY NEW, on behalf of D.J.M. and K.N.M.,

Plaintiff - Appellant,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

South Carolina, at Greenville. R. Bryan Harwell, District 

Judge. (CA-03-3949-6)

Argued: March 25, 2010 Decided: April 16, 2010

Before WILKINSON and MOTZ, Circuit Judges, and Joseph R. 

GOODWIN, Chief United States District Judge for the Southern 

District of West Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Gwendolyn Steele Fortson Waring, Savannah, Georgia, for 

Appellant. Christopher Gene Harris, SOCIAL SECURITY 

ADMINISTRATION, Atlanta, Georgia, for Appellee. ON BRIEF: W. 

Walter Wilkins, United States Attorney, Robert F. Daley, Jr., 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Nancy Mestey New (“New”) appeals a district court decision 

affirming the decision of the Commissioner of Social Security

(the “Commissioner”) to terminate the child’s insurance benefits 

(“CIB”) of her children K.N.M. and D.J.M. As explained below, 

we affirm.

I.

A.

New and Angel Mestey (“Mestey”) married in 1965, and 

separated in 1980. New gave birth to K.N.M and D.J.M. in 1982 

and 1983, respectively. D.J.M.’s birth certificate lists Mestey 

as the father; K.N.M.’s birth certificate is not in the record.1

Paternity tests performed on Mestey in 1989 revealed that 

he could not possibly be D.J.M.’s biological father. There is 

no record of such a test with regard to K.N.M. In contrast, 

paternity testing performed on another man, Derrick Faison

(“Faison”), also in 1989, indicated a 97.11% probability that he 

 

New and Mestey divorced in 1985. New and Mestey’s divorce 

decree does not mention D.J.M. or K.N.M., although it does 

mention other children born during the marriage.

 1 Although D.J.M.’s birth certificate lists Mestey as the 

father, there is no evidence that Mestey gave written consent to 

have his name entered.
3

is D.J.M.’s father and a 99.55% probability that he is K.N.M.’s 

father.

In 1994, Mestey applied for and received military 

identification cards and insurance benefits for D.J.M. and 

K.N.M. And, in 1995, he filed for Social Security disability 

benefits, listing them as his dependents. Mestey died intestate 

on January 2, 1996, in Savannah, Georgia.

On January 18, 1996, based on Mestey’s earnings record, New 

applied for CIB from the Social Security Administration (“SSA”)

on behalf of D.J.M. and K.N.M. SSA granted these applications, 

and D.J.M. and K.N.M. received CIB through February 2000.

B.

On March 29, 2000, SSA notified New that it had determined 

that D.J.M. and K.N.M. were not Mestey’s children, and that 

benefits had been overpaid to them.

On January 22, 2002, the Probate Court of Chatham County, 

Georgia entered a “Final Order of the Court Determining Heirs”

(the “probate court order”). That order ruled that D.J.M. and 

K.N.M. are “the heirs at law and dis[tr]ibutees of the said 

Angel Manuel Mestey, deceased, and are entitled to participate 

in the division of his estate.” J.A. 101. 2

 2 Citations to “J.A. __” refer to the Joint Appendix filed 

by the parties on appeal.
4

Seeking to appeal the SSA determination that D.J.M. and 

K.N.M. were not entitled to Mestey’s CIB, New requested and was 

granted a hearing before an Administrative Law Judge (“ALJ”). 

After conducting a hearing on June 25, 2002, the ALJ determined

that D.J.M. and K.N.M. were not entitled to CIB. On October 16, 

2003, the Appeals Council of the Social Security Administration 

affirmed the ALJ’s decision. The Appeals Council decision 

became the final decision of the Commissioner.

On December 15, 2003, New filed a complaint in the District 

of South Carolina, challenging the Commissioner’s decision. The 

case was referred to a federal magistrate judge. On December 

20, 2004, the Magistrate Judge issued his Report and 

Recommendation (the “Report”), recommending that the district 

court affirm the Commissioner’s decision. The district court 

adopted the Report and entered judgment in favor of the 

Commissioner on June 22, 2005. New timely appealed.

We possess subject matter jurisdiction pursuant to 42 

U.S.C. § 405(g) and 28 U.S.C. § 1291.

II.

We must uphold the Commissioner’s factual determinations if 

they are supported by substantial evidence and were reached by 

applying the correct legal standard. 42 U.S.C. § 405(g); Mastro 

v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). The Commissioner’s 
5

legal conclusions, however, are reviewed de novo. See Lewis v. 

Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002) (per curiam).

III.

New contends that the Commissioner’s decision was erroneous 

and that D.J.M. and K.N.M. are entitled to CIB. In the 

alternative, she maintains that the district court should have 

certified the issue to the Supreme Court of Georgia. We address 

each contention in turn.

A.

To qualify for CIB, a claimant must be a “child” of an 

insured individual. 42 U.S.C. § 402(d). New asserts that 

D.J.M. and K.N.M. each qualify as a child of Mestey’s under two 

separate statutory provisions: 42 U.S.C. §§ 416(h)(2)(A) and 

(h)(3).

1.

New first asserts that D.J.M. and K.N.M. qualify for CIB 

under 42 U.S.C. § 416(h)(2)(A). To determine whether a claimant 

is a “child” of an insured individual under that section, the 

Commissioner must apply state law. More specifically, he must 

apply “such law as would be applied in determining the 

devolution of intestate personal property by the courts of the 

State” in which the insured individual lives or lived at the 

time of his death. 42 U.S.C. § 416(h)(2)(A). “Applicants who 
6

according to such law would have the same status relative to 

taking intestate personal property as a child or parent shall be 

deemed such.” Id.

Here, there is no dispute that D.J.M. and K.N.M. are not 

Mestey’s biological children. Our inquiry thus focuses on 

whether they nevertheless qualify as Mestey’s heirs under 

Georgia intestacy law. New contends that D.J.M. and K.N.M. are 

Mestey’s heirs under Georgia law because (1) they were born to 

the marriage; and (2) a Georgia probate court has declared them 

to be Mestey’s heirs. As explained below, each of these 

arguments lacks merit.

a.

First, New asserts that D.J.M. and K.N.M. are entitled to a 

presumption that they are Mestey’s children, because they were 

born while New and Mestey were married. Therefore, she argues, 

they are Mestey’s heirs under Georgia law.

New is correct that Georgia presumes that children born 

during a marriage are the children of the married couple, 

Simeonides v. Zervis, 172 S.E.2d 649, 651 (Ga. Ct. App. 1969), 

and that the children of an intestate parent are the heirs of 

that parent, Ga. Code Ann. § 53-2-1(c)(1). But Georgia 

intestacy law also provides that “[a] child born out of wedlock 

may not inherit from or through his father . . . unless, during 

the lifetime of the father and after the conception of the 
7

child” one of five conditions have been met. These conditions 

are satisfied if 

(i) A court of competent jurisdiction has entered an 

order declaring the child to be legitimate . . .;

(ii) A court of competent jurisdiction has otherwise 

entered a court order establishing paternity;

(iii) The father has executed a sworn statement signed 

by him attesting to the parent-child relationship;

(iv) The father has signed the birth certificate of 

the child; or

(v) There is other clear and convincing evidence that 

the child is the child of the father.

Ga. Code Ann. § 53-2-3(2)(A).

Georgia law defines “out of wedlock” to include “[a] child 

who is the issue of adulterous intercourse of the wife during 

wedlock.” Ga. Code. Ann. § 19-7-23. Although D.J.M. and K.N.M. 

were born while New and Mestey were married, they were clearly 

born “out of wedlock” — they were “the issue of adulterous 

intercourse of the wife during wedlock.” Therefore, D.J.M. and 

K.N.M. must satisfy one of the conditions of section 53-2-

3(2)(A) to qualify as Mestey’s heirs.

None of these conditions, however, have been satisfied in 

this case. No court order has been entered declaring the 

children legitimate or establishing Mestey’s paternity.3

 3 The probate court order simply states that K.N.M. and 

D.J.M. are “the heirs at law and dis[tr]ibutees of the said 

 The 

(Continued)
8

record contains no sworn statement executed by him attesting to 

the parent-child relationship.4

Aside from this, New argues that, rather than focusing 

solely on biological parenthood, the Commissioner should have 

applied a “best interest of the child” standard to determine 

whether the children were Mestey’s heirs. This argument is 

fatally flawed. The best-interest-of-the-child standard is a 

test applied in Georgia domestic relations law. Georgia 

domestic relations law, however, generally does not impact 

questions of intestacy. Cf. Crowther v. Estate of Crowther, 574 

S.E.2d 607, 610 (Ga. Ct. App. 2002); Rodriguez v. Nunez, 555 

S.E.2d 514, 518 (Ga. Ct. App. 2001). Because the Commissioner 

 And while Mestey’s name appears 

on D.J.M.’s birth certificate, and may have appeared on K.N.M.’s 

birth certificate, there is no evidence that he ever gave 

written consent for his name to appear. Finally, there is no 

clear and convincing evidence that either D.J.M. or K.N.M. is

Mestey’s child.

 

Angel Manuel Mestey.” J.A. 101. It is silent, however, 

regarding paternity.

4 New argues that Mestey “acknowledged the children in 

writing,” and thus satisfied section 53-2-3(2)(A), because he 

listed D.J.M. and K.N.M. as dependents on his military and 

Social Security benefit applications. Br. of Appellant 8-9. 

Although these actions may indicate some acceptance of paternity 

by Mestey, they are not the “sworn statements” required by 

Georgia law.
9

was constrained to apply Georgia intestacy law, 42 U.S.C. § 

416(h)(2), he did not err in refusing to apply the best-interest 

standard.

In short, New has presented no evidence that D.J.M. and 

K.N.M. are Mestey’s heirs under Georgia law. The Commissioner, 

therefore, did not err in concluding that the children are not 

entitled to CIB under § 416(h)(2).5

b.

Second, New argues that D.J.M. and K.N.M. are entitled to 

take as children of Mestey under Georgia law, because a Georgia 

probate court has declared them to be Mestey’s heirs. The 

Commissioner considered this argument and determined that, in 

light of the facts before him, the probate court order 

conflicted with Georgia law and was entitled to no weight.

In Cain v. Sec’y of Health, Educ. & Welfare, we recognized 

that § 416(h) requires the Commissioner to apply “the law of the 

state as it has been declared by the Supreme Court of the 

state.” 377 F.2d 55, 58 (4th Cir. 1967). If the issue has not 

been resolved by the state’s highest court, however, the 

Commissioner “may follow the opinion of a nisi prius court; but 

 5 New also argues that the children were Mestey’s children 

under Georgia law because he never disavowed paternity, and 

because the children’s biological father never legitimated the 

children. These arguments have no basis in the law and must be 

rejected.
10

if he believes its decision to be in conflict with what the 

Supreme Court ‘would find’ were the point presented to it, he 

may disregard that lower court’s decision.” Id. (emphasis 

added).

Cain compels us to affirm the Commissioner’s decision. We 

are presented only with the probate court order — the Supreme 

Court of Georgia has not weighed in on this point. As a result, 

the Commissioner was free to disregard the probate court order 

if he concluded that it conflicted with what the Georgia Supreme 

Court “would find.” As explained above in Part III.A.1.a. of 

this Opinion, under Georgia intestacy law, neither D.J.M. nor

K.N.M. is Mestey’s heir. The probate court order thus 

contradicts what the Supreme Court of Georgia would find, and it 

was not entitled to any weight. The Commissioner’s decision to 

disregard the probate court order, therefore, was not error.

B.

Next, New contends that D.J.M. and K.N.M. qualify for 

benefits under 42 U.S.C. § 416(h)(3). That section does not 

require an examination of state law. Rather, it calls for an 

inquiry of, inter alia, whether the insured individual “had 

acknowledged in writing that the applicant is his or her son or 

daughter,” “had been decreed by a court to be the mother or 

father of the applicant,” or “had been ordered by a court to 
11

contribute to the support of the applicant because the applicant

was his or her son or daughter.” 42 U.S.C. § 416(h)(3)(C)(i).

New argues that D.J.M. and K.N.M. are entitled to CIB under 

§ 416(h)(3)(C), because Mestey “acknowledged in writing” that 

they are his children, by listing them in his application for 

Social Security and military benefits. The Commissioner 

responds that New has waived this claim by failing to raise it

in her objections to the Magistrate Judge’s Report.

A party “waives a right to appellate review of particular 

issues [in a magistrate judge’s report] by failing to file 

timely objections specifically directed to those issues.” 

United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007). 

To preserve an issue for appeal, an objection must have

“sufficient specificity so as reasonably to alert the district 

court of the true ground for the objection.” Id. at 622.

In her objections to the Report, New addressed neither §

416(h)(3)(C) or its parallel regulation, 20 C.F.R. §

404.355(a)(3). See J.A. 46-54. New failed to file objections 

“specifically directed to” this issue and thus waived this claim 

on appeal.

C.

Finally, New argues that the district court abused its 

discretion by declining to certify to Georgia’s highest court 
12

the question of whether D.J.M. and K.N.M. are Mestey’s heirs. 

We disagree.

The decision of whether to certify a question to the 

highest court of a state “in a given case rests in the sound 

discretion of the federal court.” Lehman Bros. v. Schein, 416 

U.S. 386, 391 (1974). We have counseled that “[o]nly if the 

available state law is clearly insufficient should the court 

certify the issue to the state court.” Roe v. Doe, 28 F.3d 404, 

407 (4th Cir. 1994).

According to New, “[t]he district court erred in finding 

that the instant case does not involve an unsettled question of 

state law. Georgia case law continues to evolve in determining 

the rights of biological versus legal fathers of children born 

to a marriage.” Br. of Appellant 18 (internal citation 

omitted). New refers to In re C.L., 644 S.E.2d 530, 532 (Ga. 

Ct. App. 2007), which concerned a custody dispute between a 

legal father and a biological father, and which discusses “the 

gaping hole in our family law regarding custody between a 

biological father and a legal father.”

With respect to inheritance law, however, New presents no 

record of Georgia courts grappling over whether to apply a 

“legal” or “biological” standard. Indeed, as discussed above, 

the very concept of “legal father” is absent from the 

inheritance statutes; those statutes seem to address purely 
13

biological rather than “legal” parenthood. Moreover, the public 

policy concerns that have animated some domestic relations 

cases, such as the importance of keeping families together, are

irrelevant when the non-biological father is deceased. It is 

difficult to see why the courts of Georgia would depart in this 

circumstance from the general statutory scheme and case law 

precedent of determining inheritance on the basis of biological 

parenthood.

Since the district court was able to predict how the courts 

of Georgia would rule in this case, it did not abuse its 

discretion by declining to certify this case to the Supreme 

Court of Georgia.

IV.

For the reasons explained above, we affirm.

AFFIRMED