                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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.

      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

      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.



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


       2
       Citations to “J.A. __” refer to the Joint Appendix filed
by the parties on appeal.



                                          3
      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

                                       4
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

                                        5
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

                                               6
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                              The


       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
(Continued)
                                                7
record contains no sworn statement executed by him attesting to

the parent-child relationship. 4                   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.

       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



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.



                                               8
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.



                                                  9
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



                                            10
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



                                            11
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

                                               12
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




                                             13
