Nancy Mestey New, on behalf of D.J.M. and K.N.M. v. MICHAEL J. ASTRUE, Commissioner of Social Security

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.

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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.

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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

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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

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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

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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)

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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.

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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.

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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

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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

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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

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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

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